Public Bill Committee

[Mr. Eric Illsley in the Chair]

Clause 45

Advice for potential applicants and others

Amendment moved [this day]: No. 232, in clause 45, page 21, line 10, leave out
‘The Commission may give advice’
and insert
‘The Secretary of State may, in connection with securing propriety, by regulations make provision about the giving of advice by an existing government body appointed for this purpose’.—[Robert Neill.]

Eric Illsley: I remind the Committee that with this we are discussing the following amendments: No. 233, in clause 45, page 21, line 15, leave out ‘Commission may not under subsection (1)’ and insert
‘body appointed by regulations under subsection (1) may not under that subsection’.
No. 234, in clause 45, page 21, line 17, leave out subsection (3).
No. 235, in clause 45, page 21, line 25, leave out ‘Commission’ and insert ‘appointed body’.

Bob Neill: I am delighted to see the Minister back in his place. I know that he has had a busy lunch time. We hope that he remains with us and is not reshuffled or promoted anywhere, after the multi-tasking he was doing on the lunch-time news. We do not want him to go until we have seen the guidance on the Welsh elements of the Bill. We hope that there will not be any drift in the Wales Office in preparing those, for obvious reasons.
To return to the point that I was making, the amendment relates to advice for potential applicants and others. I was discussing a concern that the Campaign to Protect Rural England raised in their written submissions, which has also been raised with us by a number of practitioners in the field.
It is not a problem with the giving of advice and assistance, as I hope that I have already made clear. I do not have any problem with greater use of pre-application discussions, for example, between applicants. It is sensible to involve other affected parties at that early stage, hence our reference to the great success of the Shortlands scheme in the London borough of Bromley, between the constituencies of my hon. Friend the Member for Beckenham and myself—just to eke out the press release.
The concern raised is over the propriety of the commission being the organisation to give that advice. That concern arises because, ultimately, the commission has to act as the decision maker in the process; it must be the holder of the ring. The commission must maintain the confidence both of applicants and of affected parties, for reasons that we have rehearsed at considerable length, and that I will not repeat.
Against that background, is there a risk that, if the commission is the giver of advice, its impartiality as the decision maker will be compromised? That is why we put forward in our amendment an alternative formulation and suggest that other Government agencies could happily provide that function.
For example, the Planning Inspectorate, the planning advisory service, and the advisory team for large applications already exist. If they were used, and we leave it open in our amendment as to which would be most convenient, there would be the advantage of ensuring that bodies discrete from the decision maker provided advice to applicants. There could not then be even any suggestion of discussions behind the scenes that might be misinterpreted by those who are affected and are unhappy at applications. It would enable the commission, if we are to have one, in spite of our reservations, to be more readily seen than Caesar’s wife in the matter, so to speak. In essence, that is the reason for the amendments. I hope that the Minister will realise that we are trying to be helpful to the work done by the commission.

John Healey: The hon. Gentleman is right to probe that area, to be concerned about standards and propriety and to want to be sure that the commission’s process for giving advice is as clear and open as possible. I argue, however, that it is a good thing that it will be the commission giving advice about the process to potential applicants because its members will be experts on the application process for major infrastructure projects.
It is obviously of equal importance that any contact and discussion between the commission and potential applicants does not prejudice the decision-making process in any way, that it is seen not to do so and is accepted as not doing so. That is the purpose of the regulation-making power covering the commission’s role in giving advice, particularly with regard to the disclosure of that advice more widely and to the public. 
By way of practical example, the regulations could require minutes of the commission’s meetings or the advice that it will give to potential applicants to be made available to all parties. The commission will, of course, be subject to freedom of information legislation and to the powers of the ombudsman over questions of administration.
I think that the hon. Member for Bromley and Chislehurst will accept that there is rightly further work to do on the nature of appropriate advice, that it is probably better not to put it in primary legislation and that the regulation-making power is important. I hope that he will accept that that will help to ensure that it is clear to everyone that the commission acts impartially, openly, with complete propriety and that it will be seen to do so.
Given that the provision is underpinned by a commitment to make the process as transparent and unquestionably proper as possible, I hope that the hon. Gentleman will be willing on the basis of that reassurance to wait until the details of the regulations are specified. In preparing those regulations, we will discuss and consult widely because that is the way that we are most likely to get a framework of regulations that meets his concerns and can command the confidence of those who want to see the commission acting properly.

Bob Neill: I am grateful to the Minister for the way in which he has dealt with that and am reassured. I hope that in the consultation it might be possible to look, among other things, at how the bodies that I have mentioned and others operate. I am glad that he recognises the sensitivity and importance of the issue and, with that reassurance, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Bob Neill: I beg to move amendment No. 13, in clause 45, page 21, line 13, after ‘representations’, insert
‘including oral submissions and cross examination of witnesses’.

Eric Illsley: With this it will be convenient to discuss the following amendments: No. 20, in clause 79, page 37, line 23, at end add—
‘(4) Subject to subsection (3) above, nothing in this section shall restrict the rights of interested parties to make oral representations or cross-examine witnesses.’.
No. 328, in clause 80, page 37, line 36, at end insert
‘including receiving requests to be heard orally pursuant to section 84.’.
No. 21, in clause 82, page 38, line 19, leave out ‘is to’ and insert ‘may’.
No. 267, in clause 82, page 38, line 20, after ‘written’, insert ‘and oral’.
No. 22, in clause 82, page 38, line 20, at end insert
‘subject to the right of interested parties to make oral representations and cross-examine witnesses.’.
No. 268, in clause 82, page 38, line 20, at end insert
‘and the carrying out of a site visit’.
No. 269, in clause 83, page 38, line 42, after ‘representations’, insert
‘whether personally, or by its counsel, solicitor or agent’.
No. 270, in clause 83, page 38, line 42, at end insert
‘and to call and to cross-examine witnesses’.
No. 271, in clause 84, page 39, line 12, after ‘representations’, insert
‘whether personally, or by its counsel, solicitor or agent’.
No. 23, in clause 84, page 39, line 12, at end insert ‘and to cross-examine witnesses’.
No. 272, in clause 84, page 39, line 12, at end add
‘and to call and to cross-examine witnesses’.
No. 319, in clause 84, page 39, line 12, at end add—
‘(4) Any deadline fixed under subsection (1) shall not be less than 56 days after the day on which the date of the open-floor hearing is announced.’.
No. 24, in clause 85, page 39, line 23, leave out from beginning to second ‘the’ in line 24.
No. 273, in clause 85, page 39, leave out lines 23 to 25.
No. 88, in clause 85, page 39, line 25, at end insert
‘but where a local planning authority requests that a party be cross-examined, the Examining Authority will be obliged to grant the request;’.
No. 25, in clause 85, page 39, line 39, leave out subsection (7).
No. 274, in clause 85, page 39, line 43, leave out ‘exceptionally’.
No. 275, in clause 85, page 39, line 44, leave out ‘necessary’ and insert ‘appropriate’.
No. 276, in clause 87, page 40, line 45, at end insert ‘and’.
No. 277, in clause 87, page 41, line 3, leave out from ‘application’ to end of line 5.

Bob Neill: It looks a bit of a mouthful, but essentially the point that we seek to deal with in this regard is an important one that we will return to elsewhere in the Bill. We have already flagged up the fundamental importance of the ability to have oral submissions and the cross-examinations of witnesses, and we differ with the Government on that. I know that the Minister has said, in relation to other aspects of the Bill, that there will be scope for the commission to allow cross-examination and oral submissions in certain cases. I take all that on board, but we do not regard it as adequate. This issue is so fundamental that it should be a right, not something that is at the behest of the commission. That is the fundamental difference between our position and the Government’s. The reason for this is profound: people could be affected not only in their personal lives, but in their livelihoods, their professional situations and their proprietary interests in land.
In certain circumstances, the commission will be able to issue a development consent order that includes the compulsory acquisition of land. It seems to us absolutely inconceivable that a person confronted with that possibility should not have the right—not just the discretion—to present their case in the way that they choose. They should be able to do so themselves or through the representative of their choice, to ask the questions that they want to ask and to test any evidence that is called to support the proposal that could deprive them of their land.
Where we do agree, we are anxious to stress it. Subject to that right, the commission should be able to control cross-examination through the test of relevance, as do planning inspectors. As will be remembered, we have already rehearsed our alternative construct. If policy issues are decided in the national policy statements, it will not be necessary to go down the route of the terminal 5 inquiry, which had the longueurs of repeated cross-examination trying to reopen the issue of whether there should even be an airport.
In our judgment, at the application stage, there should be a debate simply about the merits of the particular site. That could be controlled in the same way as it is in other judicial circumstances. I will not bang on about this point because we have made it before. We are sorry that the Government have not gone down this route, but if that test were applied, the cross-examination need not be oppressive, repetitious or the cause of the inquiry being dragged out.
It is important that there is a balance between seeking efficiency in the process and respecting the rights of individuals. The right to a fair hearing has been enshrined in common law almost since mediaeval times. It is also consistent with human rights legislation. The Secretary of State has signed the usual certificate saying that the Bill is compliant with the European convention on human rights. However, we suspect that if there is no clear right to cross-examination in the Bill, it will be a potential charter for more and more challenge through judicial review. In terms of planning, it will be the usual lawyers who are making the money. That is not a threat, but a statement of reality. Those who feel aggrieved and do not think that they can get a fair crack of the whip through the commission process will feel pressed to go to court to seek a remedy.
To use an analogy, the Government are falling for a false economy. They think that they will save money by making the process quicker by this prohibition. We think that it may make the situation worse through the amount of challenges and the damage that will be done to the commission’s reputation for being independent. That is why we tabled the amendment, which is mirrored in other amendments that we are proposing throughout the Bill. It would ensure that even at that early stage in the process, part of the advice to the applicant or, crucially, to other interested parties is about making representations on the application. The Bill should spell out explicitly the right to make oral submissions and cross-examine. That is the point of principle that we seek to flag up through the amendment.

Daniel Rogerson: I support the hon. Gentleman’s argument for the protection of the right to cross-examination. He has a lot more experience of that than me, but I have appeared before a planning inspector as a witness on behalf of a dedicated band of constituents. I was up against two barristers: one from the Environment Agency and one from a water company. It was great fun.
I stand to speak to amendment No. 319, which I tabled.

John Healey: I understand the hon. Gentleman’s previous involvement in the process, but does he accept that having fun is not one of the objectives set out for the IPC in the application process?

Daniel Rogerson: It may not be the intention, but it will be a happy by-product.
I return to the issue of the time that objectors have to participate in various stages of the process. Based on our previous discussion about the pre-application stage, I appreciate that the Minister said there would be an incentive for the applicant to ensure that the consultation is as thorough as possible to prevent later delay in the application stage. I can see his point, although it pains me to admit it.
At the application stage, however, it certainly is not in the interests of the applicant for the objectors to have plenty of time to put their point across. Amendment No. 319 therefore refers specifically to the period in which any potential objector has the right to notify the IPC or the applicant that they want to be heard at an open-floor hearing. That is a crucial part of the process for the objectors, because it is where they can get their point across and make their voice heard; if for any reason, the time scale was not appropriate, it would mean that they missed out on that chance. That would be hugely to the detriment of any sense of fairness in ensuring that the application was considered properly, and anyone who had that experience would be very disillusioned with the process.
I hope the Minister agrees that we should consider a longer time frame for this crucial issue to ensure that people can appeal to have their views heard at an open-floor hearing.

Clive Betts: I will speak briefly to amendment No. 88. I am not convinced by the argument that everybody and anybody should have the right to cross-examine. It has been suggested that that right exists now under planning law, but the vast majority of planning applications are considered by the planning committees of local authorities, where the right to cross-examine does not exist. Indeed, the format of procedure that the commission is likely to adopt will be adopted by committees now. Individuals will be allowed to state their case and they may be asked questions by members of the committee—a form of cross-examination—who will then reach a view.
It is up to the commissioners whether they adopt that form or allow cross-examination, as the proposal states. However, a category in the interpretation clause 92 at the end of chapter 4 specifically defines a relevant local authority as a recognised “interested party” throughout the process of the hearings.
To meet concerns about the potential removal of democratic accountability and the voice of the people, my amendment recognises that the commission will conduct the hearings as it so chooses—there is no automatic right for everyone to cross-examine—but that representations from local authorities should be treated differently because they are different and distinct. Therefore, if a local authority representing its community in a democratic, elected way, asks for the right to cross-examine, it should be allowed to do so because it is a different and distinct organisation, as the Bill recognises.

John Healey: We discussed most of the issues and principles that the hon. Member for Bromley and Chislehurst raised at some length in our debates on parts 1 and 2. I also dealt in detail with some of his concerns in the memorandum that I submitted to the Committee two days ago. I shall try to deal with a couple of the main points that he made when moving his amendment. He is right in his observations about the present system and the extent to which there are rights at present. As I have said, rather than simply importing the 2005 rules relating to major infrastructure and basing a system entirely on them, we are trying to create a new system of examination for considering nationally significant infrastructure projects.
Therefore, the Bill sets out a way of proceeding for the IPC that strengthens the pre-examination process; tries to identify and deal with issues that might be contained in the proposals up front rather than leave them to be argued over at great length in the inquiry stage; draws on a national policy statement so that matters of policy do not become the meat and drink of the inquiry; makes much greater use of written representations while ensuring that oral hearings will be heard when necessary; and aims to test, probe and assess the evidence through direct questions led by the IPC rather than by cross-examination. Such cross-examination is normally conducted by hired third-hands and lawyers who are only available to those with deep pockets, particularly in long inquiries. We have already seen and discussed the situation where even a local authority—the borough of Hillingdon—ran out of money and was unable to maintain its involvement in one of the Heathrow inquiries.
To be clear about the new rules and the suggestion that they somehow will not provide a tried, tested and established system and that we should simply use what is currently in place of the IPC, I suggest that no major infrastructure project has yet been dealt with under those rules. As we sit at the start of 2008, we can anticipate that it might well be 2009 before the first major infrastructure project is put forward as an application, and that would be on the table as a matter to be dealt with by the Planning Inspectorate under the current system. Therefore, it is not as if we have a tried, tested and established model that we could be confident is up to the job.
Cross-examination might have a place in hearings and can be a useful method for testing and probing evidence and ensuring that people’s concerns are properly established. However, as I have said to the hon. Gentleman, to somehow equate the right to be heard and have views registered with the right to cross-examination is to make a profound mistake.
Also, cross-examination has its problems. It can be costly and time consuming, and it can be difficult to estimate how long that part of the process might take. It can add to the uncertainty for all involved in any inquiry for which it is the major method for trying to establish the facts. It can be legalistic, adversarial and, therefore, intimidating, particularly for ordinary members of the public who perhaps have neither the experience nor the access to the sort of resources that are required for professional cross-examination.
For those reasons, it is better to have an IPC process that allows for cross-examination but is nevertheless essentially predicated on the view that the commission will lead the evidence testing in a similar way to how Select Committees conduct their business, with which we are familiar as Members of the House. Of course, the commission will also have access, should it require it, to additional expert advice.
On the subject of those who may be subject to compulsory purchase orders as part of the consent order regime and process for a major project, again we are taking a slightly different approach to the current system, but one that helps us to achieve our objectives while ensuring that there is sufficient reassurance and rights for those who might be affected. First, the Bill explicitly gives parties subject to CPOs the ability to trigger an oral hearing, and a right to be heard at that hearing. Secondly, I have talked about cross-examination as one method, but not necessarily the primary or only method of testing evidence.

Bob Neill: If the property of those parties is likely to be subject to compulsory acquisition and they are to have the right to an oral hearing, what mechanism will there be to guarantee them not only the ability to put their point of view, but to challenge the basis of the assertion on which compulsory acquisition is sought? It is terribly important for whatever form we have that someone who may be going lose their land, perhaps for the greater good, has the chance to challenge. That, almost invariably, involves testing and probing the evidence put.

John Healey: Indeed. I think that I made it clear a moment ago that the responsibility for testing and probing will rest with and be led by the commission, but it may involve cross-examination. Clearly, any party giving evidence at an oral examination would want to try to ensure that the right questions and testing were undertaken by the commission. It can use cross-examination if it wishes. The framework that we have set out emphatically does not rule that out if it is necessary.
There are two principal reasons for which cross-examination might be necessary. The first helps to address the hon. Gentleman’s point, and the second is equally important. Cross-examination may be necessary to ensure that adequate testing and representations have been made to the commission, and an interested party potentially affected by a CPO may have views on that. However, if cross-examination is necessary to ensure the representation of interested parties, clause 85 allows that to happen and for the commission to ensure that it happens. I hope that that is a sufficient explanation.

Bob Neill: The Minister makes it sound reasonable, but we are concerned that things will not work out that way in practice. That is why we regard the matter as one of important principle.
It is suggested that cross-examination is somehow useful only to those with deep pockets. The reality is that the situation will probably be the reverse. The ability to cross-examine is likely to be most important to the little people, as it will probably be the only means by which they will be able to get their case across and to challenge. They will not be able to have a detailed written submission put in by an expert in the same way that the applicants and the big battalions will be able to do. Their ability to have their say and to ask questions is probably more important. So it is, in fact, a protection for the little people, rather than the well resourced.
With respect to the hon. Member for Sheffield, Attercliffe, I do not think that his first point entirely follows, because the type of applications that we are talking about are not of the class likely to be considered by a local authority planning committee. Even in the current situation, they will invariably be called in and there will be a public inquiry. Therefore, there would be a hearing of one kind or another. That is the distinction.
The hon. Gentleman’s other point about local authorities, although superficially attractive to those of us with backgrounds in local government, runs into one problem. A situation could occur perfectly easily in which the local authority broadly supports a proposed development, but it has concerns about certain details and wants to pursue a particular way of dealing with the development. It has a right to cross-examine, but members of the local community who do not share its supportive view are then placed at a disadvantage. There is almost an inequality of arms created under those circumstances between different classes of people who are interested parties at the hearing. In a sense, that disadvantages the little people as opposed to those who are well resourced. In practice, it might not have the benign effect that I am sure he intended, which is why we cannot support him.
As it is an issue of principle—I will not repeat it because we have crystallised the issue in the way that the hearing would seek to do—our view is that cross-examination can be sensibly controlled.

John Healey: The hon. Gentleman is right: he has crystallised the issue. Does he not accept that he has done so by testing and probing the position and the representations that I wish to make to the Committee, rather than by cross-examination?

Bob Neill: If the hon. Gentleman were putting himself forward as an expert witness, I might need to cross-examine him in a different format. It is often said, rightly by those who do rather more of this work than I ever did at the Bar, that the more expert witnesses there are—there will be tonnes of experts on these type of applications—the more the skilled professional is needed to test, probe and cross-examine. It will not be the little objector who will be subjected to heavy cross-examination, but the expert witness for the applicant who will need to be pushed hardest in cross-examination. It is the little people for whom the measure is most important. Although we want to see all the controls put in place, which we have agreed can be done through a different route, we regard this is as a matter of principle and so will press the matter to a Division.

Daniel Rogerson: I was doing something dangerous for a man: I was attempting to multitask while the Minister spoke. I am not sure whether he addressed my point about time issues. Does he have anything further to add about the time frame involved in securing the right to an appeal? I cannot remember the clause, but it is up in the 80s. It has been grouped with this amendment because we are talking about open-floor hearings. I would welcome anything that the Minister can say on that. If he cannot respond, I shall press amendment No. 319 to a vote because it is a crucial issue. It would be a huge problem if someone missed out on that fundamental right.

Clive Betts: When my hon. Friend responds to that could he also come back to my point about the special position of local authorities and whether he thinks that needs to be reflected further in the Bill? They are clearly given a special position in chapter 4.

John Healey: To answer my hon. Friend’s point directly, the case is not clear for special treatment in this part of the Bill. The hon. Gentleman is right: questions of timing appear later. They are connected principally with the application process. We are dealing with the pre-application process. I propose to deal with that point in more deal when we get to the relevant clause.

Daniel Rogerson: On a point of order, Mr. Illsley. Will we be able to vote on amendment No. 319 when we reach that clause?

Eric Illsley: Yes.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 11.

Question accordingly negatived.

Bob Neill: I beg to move amendment No. 202, in clause 45, page 21, line 21, leave out subsection (4) and insert—
‘(4) The Commission shall disclose a person’s request for advice under subsection (1) and the advice given under subsection (1) to a person to the public generally.’.
The amendment returns to the first issue that we discussed about transparency and the disclosure of requests for advice. I agree with the Minister’s points about the importance of transparency and probity in such cases. It is precisely because we set such store by that that we believe it should be in the Bill, rather than having the power as set out in the clause to achieve it by creating regulations. The transparency issue might give rise to legal challenge and so would be better spelled out in the Bill.
There could be circumstances in which objectors or affected parties want to know what has taken place between the commission and applicants, particularly when they are drawing up their own cases. I accept that the Freedom of Information Act 2000 will apply, but sometimes it takes a long time to get information under that process. I am also concerned that sometimes applicants might seek to pressure the commission into not disclosing all of the discussions, sometimes under the guise of commercial confidentiality. The amendment would strengthen the Government’s desired position of ensuring that there is the maximum possible openness about pre-application discussions.
Again, this is a Caesar’s wife point. Because of the important principle that is involved, we think that it would be better for this power to be in the Bill, rather than it being left to regulations. I am interested in how the Minister thinks we can guarantee the preservation of these people’s rights so that they can have access to material discussions between the applicant and the commission—particularly if it is the commission and not a separate body that is giving the advice—so that they can use it in drawing up their own cases.

John Healey: In many ways, I think that we had this discussion in the debate on amendment No. 232. I dealt with the same points that the hon. Gentleman made then, and he was good enough to nod and accept them and did not press that amendment to a vote. I would like to invoke a refer-back provision rather than take up the Committee’s time in discussing this amendment. I hope that he will take the same view with this amendment as he did with amendment No. 232.

Bob Neill: If the Minister is reassuring me that the consultation on the regulations will take the same form as he has already indicated, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 45 ordered to stand part of the Bill.

Clause 46

Obtaining information about interests in land

Bob Neill: I beg to move amendment No. 262, in clause 46, page 21, line 41, at end insert—
‘(2A) The applicant shall pay the recipient’s reasonable costs of complying with the notice.’.
The amendment deals with a fairly simple point. We do not have a problem with the basic concept of a notice being served in the way proposed in the clause, because it is appropriate to obtain such information. However, the applicants will often be large organisations that are very well resourced, and they may well be serving notice to very small organisations or individuals. In fairness, it is not unreasonable for the recipient of the notice to claim back reasonable costs from the applicant in such circumstances. We are rightly trying to front-load much more of the work into the process for the reasons that we have discussed, but it is a question of equality and fairness.
The provision has the potential to be onerous for a private occupier or small farmer whose land is affected, if they have to comply fully with a notice, particularly if there are complications over ownership. In financial terms, there will be no skin off the nose of the applicant for a project of that magnitude when set against the overall scheme of things, but the amendment would do something to redress the balance in favour of the little people. In particular, it would add to the sense of fairness that I am sure the Minister wants to achieve in the commission’s working. I hope that it would not do any damage to the scheme of the Bill.

John Healey: Perhaps it will help to put the hon. Gentleman’s concerns in perspective if I explain to the Committee the type of information that will be obtained. The only type of information that may be obtained using that power is a person’s name and address. In those circumstances, I think that the hon. Gentleman accepts that the costs of compliance are likely to be negligible. It would not be reasonable for the commission to authorise the serving of a notice in circumstances where the applicant could readily obtain the information by other means, such as a Land Registry search. In those circumstances, it would not be reasonable to get them to do so, so I am not sure whether the amendment, which I suspect is a probing amendment, serves a particularly useful purpose.

Bob Neill: Will the Minister assure me that no subsequent regulations will extend the scope of that power beyond searching for the name and address? If he can assure me on that, I will have probed as much as I need and will probably not need to press the matter further.

John Healey: The only type of information that that power can be used for is a person’s name and address. I hope that that gives the hon. Gentleman the reassurance that he seeks.

Bob Neill: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Daniel Rogerson: I beg to move amendment No. 175, in clause 46, page 22, line 17, leave out ‘14’ and insert ‘56’.

Eric Illsley: With this it will be convenient to discuss the following amendments: No. 263, in clause 46, page 22, line 17, leave out ‘14’ and insert ‘28’.
No. 176, in clause 47, page 23, line 27, leave out ‘14’ and insert ‘56’.

Daniel Rogerson: I return to my recurring theme of time scales, which we will probably revisit when we debate subsequent clauses. I am concerned about the imposition of fines. Where there is the potential for a fine to be imposed, we need to look at the length of time proposed. As the Bill is drafted, the time scale is 14 days, but someone could easily miss out if they are on holiday for 14 days. If that were a problem, it would be fair enough if they got a stern letter on their return and had to forward the information, but we are talking about a level 5 fine.
First, for those of us who are uninitiated in the ways of the courts, perhaps the Minister will confirm what a level 5 fine is. Secondly, does he feel it appropriate to fine someone just because they happen to have been away on holiday when the letter landed on their doorstep? I think that 14 days is far too short a period, so our amendments suggest the somewhat more generous period of 56 days. The Minister might feel that that is too long, but perhaps we can reach an accommodation, if he is prepared to examine the matter and return to it at a future stage. That would be welcome, because two weeks is a very short period of time, particularly if people are at risk of incurring a fine.

Bob Neill: I agree with the point made by the hon. Member for North Cornwall. We have also tabled an amendment, No. 263, on the subject, with the only difference being the amount of time allowed.
Perhaps more than most people, I ought to know what a level 5 fine is, but I must confess that it escapes me for the moment. [Interruption.] The hon. Gentleman asked me, but I could not tell him, so I did not charge him anything—I am sure that the Minister has the information to hand. My recollection is that a level 5 fine is at the top end of the scale. I agree that that could be thought to be onerous, for the reasons that the hon. Gentleman has set out. If there is scope for accommodation, I commend our figure of 28 days, which is a middle point in the spectrum that is achievable as a businesslike proposition for the Minister.

John Healey: First, a level 5 fine is a maximum of £5,000. Secondly, I do not think it unreasonable to have a minimum time scale in the Bill, and we judge 14 days to be a good minimum. The hon. Member for North Cornwall has bid for a fourfold increase in that amount, and the hon. Member for Bromley and Chislehurst has bid to double it, but neither of them made a strong case why the minimum time scale should be increased.
The purpose of clause 46 is to allow the commission the power to authorise a promoter or applicant to serve such a notice on the occupier of the land. Anyone who receives rent for it, manages it, is a mortgagee or has an interest in the land is required to provide the names and addresses of people with an interest. That is the purpose, which is quite narrowly drawn, and not a cause, as far as I can see, for the level of concern expressed by Liberal Democrat and Tory Members.

Bob Neill: I do not disagree with the basic principle, which is perfectly fair, but can the Minister make a strong case why 14 days is the magic figure, as opposed to 28 days or 56 days? Is there any particular evidence or any consistency with other practice that spells out 14 days?
 John Healey rose—

David Curry: How about 42 days?

John Healey: I hear 42 days from the right hon. Member for Skipton and Ripon.
The time scale is a minimum, and the commission can specify a longer time period, if it judges it to be right in the circumstances. Clause 46 relates to the notice period that must be given before a right of entry can be exercised—no more, no less. If hon. Members have a stronger case to put, then I will, of course, listen, but as things stand, for the power that the clause bestows, I do not hear the strength of argument from them that would persuade me that 14 days is not an appropriate minimum. If the hon. Gentleman wants to press his amendment to a vote, I shall ask my hon. Friends to resist.

Daniel Rogerson: I did not expect the Minister to be generous on some of the amendments, but he is being particularly stingy on that one.
If we are talking about 14 days, someone might not receive notification for all sorts of reasons—they could have gone on holiday or into hospital, and we have heard about busy times of the year and so on. We can say that 14 days is the minimum and that the maximum fine is £5,000, but, if we think that either end is extreme, we should change the Bill. We have to acknowledge that that minimum time period and the maximum fine may be imposed. We are not necessarily talking about companies or local authorities; we could be talking about private individuals. The time scale and fine are tough things to impose on someone in connection with an application.
We have been having an auction on the number of days, and I am open to suggestions on a more reasonable minimum. However, we need to take seriously the possibility that someone could have a £5,000 fine slapped on them for simply being unable to respond, for whatever reason, within 14 days, which would be overly onerous. A lengthier period would not delay an application hugely, and I cannot see a huge argument against it. I shall withdraw my amendment, but the hon. Member for Bromley and Chislehurst may wish to intervene to say that he wants to push for a vote on his amendment.

Bob Neill: I cannot oblige the hon. Gentleman, but perhaps we will return to the matter. Does he agree that it is uncharacteristically rigid of the Minister not to give way on this and that it would be onerous to catch an ordinary family holiday that falls foul of the provision? A 28-day period would be more reasonable.

Daniel Rogerson: I am grateful to the hon. Gentleman for intervening on me at my request. Far be it from me to suggest that rigidity has entered the Minister’s demeanour, as he has spent some time at the Treasury. I hope that he will consider the issue and whether a fine should be imposed on someone for being unavailable for 14 days. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 46 ordered to stand part of the Bill.

Clause 47

Rights of entry

Bob Neill: I beg to move amendment No. 14, in clause 47, page 23, line 11, at end insert—
‘(1A) Subsection (1) shall come into force on such a day as the Secretary of State may by order made by statutory instrument appoint.’.

Eric Illsley: With this it will be convenient to discuss amendment
No. 47, in clause 179, page 101, line 1, after ‘section’, insert ‘47(1),’.

Bob Neill: The amendment would insert a subsection to which we have referred before. Introducing the measure by statutory instrument would allow time for reflection. We are still not convinced that it is wise to embark upon this course, when we are yet to see the working out of the 2005 rules. Because we have misgivings, and because there is still a lot of uncertainty, we want to allow more time for reflection. The House should have the opportunity to vote before it introduces a procedure that potentially has significant ramifications for the rights of individuals.

John Healey: Quite simply, if the hon. Gentleman wants to see how the 2005 rules work out before putting this part of the Bill into effect, we will have to wait for a number of years. It may not be just the end of this year, but the end of next year before we see the first of the applications under the new rules. If he wants to see the rules work out, we will have to wait a lot longer. Despite his velvet presentation, the amendment would drive a coach and horses through this part of the Bill.

Bob Neill: We need to consider not only the way in which things work in practice, but the need for sensitivity, which the Government should recognise. The right of entry into someone’s home, for example, is a significant interference with their legal rights, such as their rights under the European convention on human rights. The Government are anxious to comply with that convention, which should not be ignored, save on the most compelling grounds. That is why a provision that allows an intrusion into someone’s private property, albeit for justifiable purposes, should not be brought into force without the House being able to vote on it. If it became apparent that there would be a delay in seeing how the 2005 rules work out, we need not wait for that. It is that interference—perhaps I should have stressed that more in my earlier argument—with the rights of the individual that concerns me, but I shall not press the amendment at this stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 47 ordered to stand part of the Bill.

Clause 48

Rights of entry: the Crown

Daniel Rogerson: I beg to move amendment No. 177, in clause 48, page 24, line 16, leave out from ‘land’ to end of line 17.

Eric Illsley: With this it will be convenient to discuss amendment No. 178, in clause 48, page 24, line 21, leave out subsections (3) and (4).

Daniel Rogerson: I shall be brief, because we have already discussed the difference between Crown land and other land. When I was tabling the amendments, I considered the point that more protection is afforded to Crown land than to the land of private individuals. Therefore, I do not wish to move the amendment officially.

Eric Illsley: The amendment has not been moved formally.

Clause 48 ordered to stand part of the Bill.

Clause 49

Acceptance of applications

Amendments made: No. 360, in clause 49, page 24, line 41, at end insert—
‘(ba) that development consent is required for any of the development to which the application relates,’.
No. 361, in clause 49, page 25, line 1, leave out ‘it’ and insert ‘the application’.—[John Healey.]

Bob Neill: I beg to move amendment No. 203, in clause 49, page 25, line 8, leave out ‘from a local-authority consultee’.

Eric Illsley: With this it will be convenient to discuss the following amendments: No. 204, in clause 49, page 25, leave out lines 10 to 14.
No. 205, in clause 49, page 25, line 17, leave out ‘and 43’ and insert ‘, 43 and 44’.

Bob Neill: The three amendments all hang together. They build on what the Government and almost all the witnesses recognised as the important issue of ensuring that there is a robust consultation procedure, which we seek to strengthen. The clause requires certain tests to be met for the application to be accepted, because requiring the applicant to demonstrate the robustness of the consultation is important. From what the Minister has said, I think that the Government accept that principle.
We think that it would be right and proper to apply the same requirements that currently exist for local authorities to the community generally. Although there will frequently be an overlap, one can think of many cases in which representations from members of the community will be of a different kind to those made by the local authority. That requirement would not add to the time scale, but it has the useful purpose of requiring the applicant to apply their mind to the issues raised by community objections. It is also important that they are seen to apply their mind to such things, which is a useful discipline that could result in time being saved later. We also think it right and proper, and much more consistent with good practice under domestic and European law, that reasons should be given for the views that applicants take.
Amendments Nos. 203 and 204 would extend the requirement to members of the community. Amendment No. 205 would require the applicant, as well as taking account of the objections, briefly to set out their responses, which would demonstrate that the applicant has applied their mind to what all the consultees have said. They can set out their stance succinctly, and it need not be an onerous task. That would help with the crystallisation of issues for the next stage of the process, and it would help the process to be seen to be fair and transparent.

John Healey: The hon. Gentleman and I share a concern to see good, thorough consultation as part of this stage of the process of dealing with applications. If I clarify how the clause works, perhaps he might be reassured.
The reference to a “local authority consultee” in subsection (4) would not prevent other parties from submitting representations about how adequate the consultation had been or mean that the commission could ignore them. Indeed, if someone were to write to the commission raising concerns about how adequate the consultation had been, it would be obliged by the basic principles of administrative law to take that into account in coming to a decision.
The wording in clause 49 simply means that representations from the relevant local authorities about how well the promoter has consulted the local community should be given particular attention by the IPC for two reasons. First, as my hon. Friend the Member for Sheffield, Attercliffe pointed out, local authorities have a unique knowledge about their area, a democratic mandate and experience of how best to ensure that local people are involved and that their views are taken into account. We want to ensure that that special experience and knowledge is captured and made available to the IPC.
Secondly, the Bill therefore puts a specific duty on promoters to consult the relevant local authorities when they are working out how to consult the local community that may be affected by their proposals. Local authorities will have been involved in the promoter’s planning of the pre-application consultation from an early stage. They will know what the promoter committed to doing during that process and will be in a strong position to pass judgment and comment on how effective the consultation has been.
For those reasons, it is appropriate that the IPC has regard to the local authority’s views, as proposed in the clause as drafted.

Bob Neill: I do not disagree with anything that was said about local authorities. I spent 16 years on a local authority and I am a pro-local authority person. However, I do not entirely see why it should not be practical to look beyond the local authority at other people, too. The Minister did not respond to the fact that in some cases, but not in others, the views of the local authority and of the residents will coincide. I would not want the—perhaps unintended—consequence of advantaging one set of consultees at the expense of another, which would be unfair.
I will not press the amendment to a Division, but I hope that before Report the Minister will reflect on how we can take account of the valued input of local authorities and also ensure fairness to individuals, residents associations or other representative groups. If only a small part of a local authority’s area is directly affected, there may be different perspectives that should be given equal weight. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 49, as amended, ordered to stand part of the Bill.

Clause 50

Notifying persons of accepted application

Daniel Rogerson: I beg to move amendment No. 179, in clause 50, page 25, line 42, leave out ‘28’ and insert ‘56’.

Eric Illsley: With this it will be convenient to discuss the following amendments: No. 264, in clause 50, page 26, line 6, at end insert—
‘(7A) The publicity of the application shall include, as a minimum, advertising the application for two consecutive weeks in a newspaper circulating in the locality of the application and in the Gazette.’.
No. 265, in clause 50, page 26, line 6, at end insert—
‘(7B) The application shall be made available for inspection by the public at a reasonably convenient location within the vicinity of the application site and on a website.
(7C) The public may obtain paper and electronically recorded copies of the application for no more than the cost of copying the material.’.
No. 266, in clause 50, page 26, line 10, at end insert—
‘(8A) The deadline referred to in subsection (8) shall be not less than 28 days from the first publication of notice of the application.’.

Daniel Rogerson: Never let me be accused of being inconsistent, Mr. Illsley.
Amendment No. 179 relates to the time periods available to objectors in notifying the commission of their objection. The Bill as drafted specifies 28 days. For the reasons that we discussed earlier, and may well return to, that may be too short a period.
I am mindful that the IPC’s work load will be about 40 applications a year and it may well increase. I would hate it to become very busy, as lots of applications are submitted in mid to late December and late July, so people in the community receive notifications at a time of year when they may be otherwise occupied. That might sound as if I am cynical and deeply suspicious of these processes, but my reading of the Bill is that the notification period in clause 50(5) is not up for negotiation with the commission, but is set by the applicants themselves.
I find it rather odd that the applicant decides how long people have to register an objection, but if that is to be the case, 28 days is overly generous to them in dictating that period. I hope that the Minister will consider the matter again. It is very important, as it is a real opportunity for people whose concerns have not been met at the pre-application stage to get involved at the application stage, and to ensure that all the evidence that they have to bring to bear is put forward. It is a crucial question, and I hope that he will be slightly less rigid at this juncture.

Bob Neill: I do not disagree with the principle of the hon. Gentleman’s point. I am always willing to try to be an honest broker between him and the Minister. If we split the difference in this case, between 28 and 56, we do indeed arrive at 42 days. That is perhaps the only logical justification for 42 days that I have yet heard since it was produced. We may have answered the question of my right hon. Friend the Member for Skipton and Ripon, and found a reason, for once, for the figure of 42 days which is principled as well as pragmatic.
I wish to make a different, although related, point on our amendments, moving from the time aspect to minimum standards of publicity for the application. As anyone who has looked at good practice in the planning field will know, we have adapted what is good practice anyway—giving two consecutive weeks’ notice in the local newspaper and the Gazette, ensuring that it is posted up in a reasonably convenient location, because one can imagine a large rural area where getting to the local civic centre is quite a trek for people, and recognising the right to obtain copies at a reasonable cost. None of that is in the slightest bit onerous to an applicant for the sort of applications that we are considering. Perhaps the Government intend that those things should happen in practice, but our amendments spell out more specifically rights that are valuable, especially to the individual concerned. They do not harm the scheme of the Bill either.
Even at an advanced hour, there is occasionally the opportunity for a degree of flexibility and charity. I know that the Minister is a charitable man at heart. The amendments would be a concession to the smaller people, which would do no harm at all to the Government’s objectives, and would not hurt anyone. Against that background, I hope that he reflects favourably on them.

John Healey: We are breaking some interesting political ground this afternoon. The Tories are triangulating and trying to stake out common middle ground, and the Liberal Democrats are being consistent.
I agree with that it is important that people who are affected by an application have suitable and sufficient time to formulate any representation that they want to make to the IPC. As things stand, I believe that 28 days is the appropriate length of time for interested parties to do that. I will try to explain why.
First, let us not forget that, by the time an interested party is formally notified of an application, they are likely to know a great deal about the proposals in the application. It is highly unlikely that it will be the first that they have heard about it, or that it will be the first time that they turn their mind to it. Instead, the application process will have been preceded by an extensive period of consultation and discussion at the pre-application stage, which we considered in part 5. By the time an application is submitted, people who may be affected will be well aware of any problems that they could have with it. In that context, 28 days is an appropriate length of time for them to respond. Of course, the period can be longer if the applicant thinks it necessary.
As the hon. Gentleman said, amendments Nos. 264 to 266 would put some minimum standards for publicising an application in the Bill. I ask him to bear it in mind that the Bill already allows for the Secretary of State to make more detailed regulations about how publicity should be carried out. In particular, subsection (7) gives the Secretary of State powers to prescribe minimum standards for publicity and notification.
Amendment No. 266 would impose a deadline of at least 28 days, by which representations relating to an application must be submitted. That would apply to those who are not notified directly by the applicant, but who respond to the publicity. Regulations are better placed to deal with the issue in a more detailed way, and they will do so. We have deliberately allowed for flexibility in the regulations under subsection (8) so that the deadlines by which people must make their representations take account of different circumstances. I give the hon. Gentleman the reassurance that we have no intention of using that flexibility to set a deadline of fewer than 28 days.

Bob Neill: Will the Minister also assure me that the type of issues covered in amendments Nos. 264 and 265 are the sort of things that regulations should cover?

John Healey: Yes.

Daniel Rogerson: I am grateful to the Minister for his reassurance that there will be further regulation on these matters. I understood that subsection (8) related to the form of publicity, but if the Minister is saying that in determining that, greater consideration will be given to the time frame, it is very helpful. The process must be seen to be fair and objectors might find it somewhat odd if it were the applicant setting the period for response rather than the commission. However, on the basis of the Minister’s assurances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 50 ordered to stand part of the Bill.

Clauses 51 and 52 ordered to stand part of the Bill.

Clause 53

Initial choice of Panel or single commissioner

Daniel Rogerson: I beg to move amendment No. 299, in clause 53, page 27, line 28, leave out from beginning to ‘must’ and insert ‘The Secretary of State’.

Eric Illsley: With this it will be convenient to discuss the following amendments: No. 300, in clause 53, page 27, line 41, leave out ‘and’.
No. 301, in clause 53, page 27, line 42, at end insert ‘, and
(d) the relevant local planning authorities.’.
No. 302, in clause 53, page 28, line 1, leave out ‘or’.
No. 303, in clause 53, page 28, line 2, at end insert ‘, or
(c) by the relevant local planning authorities.’.
No. 305, in clause 54, page 28, line 8, leave out from beginning to ‘may’ and insert ‘The Secretary of State’.
No. 306, in clause 54, page 28, line 23, leave out ‘or’.
No. 307, in clause 54, page 28, line 24, at end insert ‘or
(c) by the relevant local planning authorities.’.
No. 304, in clause 54, page 28, line 26, at end add—
‘(6) A person making a decision under subsection (2) must publish a statement setting out the reasons for their decision.’.
No. 308, in clause 57, page 29, line 28, leave out from beginning to ‘must’ and insert ‘The Secretary of State’.
No. 309, in clause 57, page 29, line 39, leave out ‘and’.
No. 310, in clause 57, page 29, line 40, at end insert ‘and
(d) the relevant local planning authorities.’.
No. 311, in clause 57, page 30, line 3, leave out ‘or’.
No. 312, in clause 57, page 30, line 4, after ‘Commission’, insert ‘or
(c) the relevant local planning authorities.’.
No. 313, in clause 57, page 30, line 5, at end add—
‘(6) The person appointed to make appointments under subsection (1) shall do so on the advice of the Council.’.
No. 314, in clause 58, page 30, line 15, at beginning insert
‘The Secretary of State may in consultation with’.
No. 315, in clause 58, page 30, line 16, leave out ‘may’.
No. 316, in clause 58, page 30, line 17, leave out ‘the chair’ and insert ‘the Secretary of State’.
No. 318, in clause 58, page 30, line 19, leave out ‘may’.
No. 317, in clause 58, page 30, line 20, leave out ‘the chair’ and insert ‘the Secretary of State’.
No. 288, in clause 71, page 34, line 25, leave out subsection (2).
No. 289, in clause 71, page 34, line 31, leave out ‘and’.
No. 290, in clause 71, page 34, line 32, at end insert ‘and
(d) the relevant local planning authorities.’.
No. 291, in clause 71, page 34, line 35, leave out ‘or’.
No. 292, in clause 71, page 34, line 36, at end insert ‘or
(c) the relevant local planning authorities.’.

Daniel Rogerson: As far as I am aware, this group of amendments does not have any relation to time scales of 28, 56 or 42 days.
The amendments relate to the choice of whether a panel or a single commissioner should be appointed to consider an application. I would like to put it on record that I have concerns about the single commissioner process in any case. We are talking about very complex considerations.
We have heard already that the commission will be established in such a way as to represent a broad cross-section of areas of technical expertise and experience. That is a noble aspiration, regardless of my position on the commission as a whole. If that is the reality, it will help the commission to do its job. However, if one person is asked to be the repository for all of that experience and knowledge with regard to one application, I think that they will struggle. That is why I tabled an amendment that has not been selected for debate because it concerns a clause stand part issue with regard to clause 70 and the use of single commissioners. Perhaps we will return to that matter later.
The amendments focus on two issues. First, they would give responsibility to the Secretary of State for choosing between a panel and a single commissioner. If we are to have the facility of having a single commissioner, it is not particularly onerous for the Secretary of State to make that choice on the advice of the commission’s council. However, we think that it is important, as part of the process of being seen to be fair, that the Secretary of State should have some involvement in making that decision and choosing who will serve on that body.
There are potential issues about people being unhappy with certain commissioners. We are talking hypothetically about a new body, but the longer commissioners serve on the panel, the more their track record and particular areas of expertise will become apparent, and that is an important part of the process on which someone else can express a view. On that basis, I hope that that someone would be accountable. I will not rehearse the debate about how accountable the Secretary of State is with regard to planning, but it would only be right and proper that the Secretary of State makes the decision on who would consider each application.
I also tabled amendments in this group that deal with the ability of the local authority to be consulted on that. A local authority will have people in its planning department who keep a close eye on the track record of individual commissioners and might have a view on what each commissioner could bring to the panel. That does not mean that they could be chosen because an interest might incline them to be for or against an application, but because they have reassured the local community through their local authority that they have the broad range of skills necessary to consider a complicated application. Therefore, I think that the Bill would benefit from the ability of the local authority to have some input in that decision.
I have concerns about the use of single commissioners, but we will no doubt return to that when we deal with later clauses. I would, however, be interested to hear the Minister’s justification for having an internal decision within the commission to decide whom to appoint to each project. There could be a perception that unfortunate things were going on within the commission, so it would be more transparent to have the Secretary of State make that decision. The basis behind the amendments is that the Secretary of State should be responsible for allocating the personnel to consider each application and that the local authority, in particular, should be able to contribute to that decision.

Bob Neill: I broadly support the thrust of the hon. Gentleman’s comments and associate myself with them. I also hope that the Minister, in his response, can assist us a little more by fleshing out the sort of circumstances in which it is envisaged that the single commissioner procedure would be used, because I share the hon. Gentleman’s misgivings about it We have flagged that up earlier in debate, so I will not repeat it now. However, I would like to note just what the Minister sees as the justification for it, in what circumstances it would be used and what the practical effects will.

David Curry: I am also a little bothered about that. The principle of the Bill is to isolate certain questions relating to large infrastructure projects and the purpose of the commission is to bring together a range of expertise. The Minister said that that had to cover expertise in human relation and in dealing with communities as well as expertise on the material substance of project, such as nuclear or transport issues. Therefore, unless we will have a renaissance man or woman on the panel, a single person will find it difficult to have the necessary range of expertise, which is very wide. There is social as well as technical and economic expertise that will deliver this. I find it almost a contradiction in terms to set up a commission specially to handle these large projects and then to say that one person can deal with it. That seems curious.
Secondly, commissioners can be taken ill. If there is a single panel and that person becomes ill or is involved in an accident or has pressing personal circumstances, it is unreasonable that the whole process should be halted while that is sorted out. Nor would it be possible to ferry in a new commissioner to do it without having to recapitulate all the evidence because otherwise it would be wide open to legal challenge. Surely it makes sense on the pure grounds of an insurance policy to have a number of commissioners so that if one of them has an accident, is taken or there is a problem, the other commissioners can carry on without there being any doubts about the range of expertise that is still available to the trial. I presume there will be some rules at some stage about what happens if a commissioner has to be absent from some parts of a proceeding and whether they can come back and carry on or would have to count themselves out.
Thirdly as the hon. Member for North Cornwall said, commissioners will inevitably begin to acquire individual reputations. Planning inspectors have individual reputations now. People ask, “Who are we going to be heard by?” They do have different performances. People will inevitably prefer one commissioner over another because they seem more sympathetic and deal with matters in a different way. It is equally important that there should never be any taint that the person appointed should have some particular affinity with the sector that is being dealt with. All those three items seem to indicate that we might have a streamlined panel, but there has to be a minimum range of expertise to enable it to carry on in the circumstances in which events of one sort or another buffet it.
The Minister may say that in the early stages there would be no question of a single panel with a single commissioner. But precedents will be set and there will be the first cases. I am sure that it will make sense for the early cases to be heard by a group of commissioners, not least so that a sort of case law is built up and established practice is built up in which people have confidence. By the time they are getting their 56th application for a nuclear power station, which is a long way down the line, they could say that so many other decisions have been taken that it takes on more of a routine and predictable character.
There again one runs into the objections from objectors who say, “Hang on. This is our application. This is my backyard and I am concerned about that.” I should be grateful if the Minister could outline in what circumstances a single commissioner would hear the entire case. Would that be down the line when a significant body of case law had been built up? What would be the provision if that single commissioner were incapacitated so that the proceedings were brought to a halt or significantly delayed?

John Healey: Clauses 53 to 58 are essentially about the powers and role of the chair in putting together either a single commissioner or a panel in which to make applications and also in the freedom in certain circumstances to make changes to the arrangements. The hon. Member for Bromley and Chislehurst and the right hon. Member for Skipton and Ripon asked about the circumstances in which a single commissioner may hear an application. It is certainly the case that many of the major infrastructure projects will be complex. They will be major applications and will need to be looked at by a panel of commissioners but a range of smaller or less complex projects will be heard by the IPC under the framework of this Bill.
I was asked for specific examples. Two might suffice in this context. They could be smaller projects on the strategic road network or electricity transmission and distribution system. Such projects may not be particularly large or complex—for example, they may be improvements to a key road junction—but because they are critical to the operational effectiveness of the network as a whole they are nevertheless of national significance and therefore a matter for the IPC. We considered in parts 3 and 4 what constitutes a nationally significant infrastructure project.

Daniel Rogerson: I accept that there will by comparison be schemes that are smaller than others. However, by their very nature if they are of nationally significant importance they will be bigger than the average planning application to the local authority. There will be people in the area who are affected by them who will be interested in who will determine the application, as the right hon. Member for Skipton and Ripon said. What I am trying to say is that it is all relative. Does the Minister agree?

John Healey: No. It is not all relative. It is not a matter of size. Projects may be appropriately determined by a single commissioner not because they are big or particularly complex but because they are part of infrastructure such as an electricity or road network that is of national significance. That is what brings them into the ambit of the IPC. However, some applications could be heard by a single commissioner and not require the sort of commission panel that an application for a new nuclear power station, for example, might justify.

David Curry: The Minister and I both represent Yorkshire constituencies, so I assume that we are equally familiar with the A1. The hon. Gentleman, and you, Mr. Illsley, will know that there are three major roundabout improvements in north Nottinghamshire and south Yorkshire, which are intended to solve a problem that I have never encountered in all the time I have been driving up and down the A1. Are those projects key small parts of a national network? How would the Minister classify them? If applications for those roundabout improvements were made after the Bill became law, how would he classify them in terms of their relationship to the A1, which has been a national link since the Romans built it?

John Healey: The right hon. Gentleman would not expect me to pre-empt a decision on a hypothetical situation. The A1 is clearly a network of major national significance, but how an application or project may be treated will be determined by the criteria set out in the Bill rather than in view of any observation that I might make.
The Bill provides that projects can be examined by a single commissioner who would not take the decision alone but submit a report with recommendations to the council of the commission. In all circumstances a group of commissioners rather than a single commissioner would take the decision for the commission.

Daniel Rogerson: The council then becomes a more crucial body, which we have not explored in depth. Can the Minister confirm that the council would be chaired by the chair of the commission? There is a facility in this part of the Bill for the chair of the commission, who has a vital role in the commission as it is currently structured, to appoint himself—or herself—to be the person who considers that application. The chairman takes a decision to appoint himself to be the single commissioner, then conducts the inquiry, handles the application, makes the recommendation and chairs the commission as well. That might be a rare, hypothetical situation, but it is possible.

John Healey: A chair who adopted all those roles would have to be a super-workaholic. It is likely to be the proper role for the chair to chair the council or, in some circumstances, that could be undertaken by one of the deputy chairs of the commission.
The purpose that underpins these clauses is ensuring that we have a way of considering any application that is proportionate to the complexity and the demands of the case.
I turn to the question of appointments being a matter for the commission. I will explain why I take the view that they should be a matter for the commission rather than for the Secretary of State, as proposed by the hon. Gentleman. Under the circumstances in which an application would be received, the commission and, in particular, the chair of the commission will be much better placed than the Secretary of State to make decisions about whether it should be handled by a panel or by a single commissioner, and, subsequently, whether it would be appropriate, for example, to switch to a panel rather than a single commissioner. Adding to the Bill the requirement for a statement of those reasons would be adding a paper exercise.
The hon. Gentleman’s central point is that it should be the Secretary of State and not the chair of the commission who should make such decisions. I think that the Secretary of State would accept that they do not know the details of each particular case. The commission will have all the documentation, including the reports on the pre-application consultation; it will know the issues that need to be resolved; it will know how complex the issues are; and, from the experience that it will build up, it will have a good sense of the appropriate way of dealing with such issues. In practice, if it were up to the Secretary of State to take such decisions, they would almost certainly have to rely on the advice of the commission. In addition, these are essentially practical decisions and so not appropriate for the Secretary of State.
On the question of appointments, it is our intention that every commissioner will be capable of considering each and every application, whether as a member of a panel or as a single commissioner. The correct role for the Secretary of State within that system is surely to appoint members of the commission who have the right qualities. That is the role that schedule 1 will give them.
It is rightly a matter for the chair of the commission to decide which member or members should handle a particular case, subject to the provisions of clause 62 about applications in Wales. The chair of the commission will be the chief executive. They will know which commissioners are available to handle a new application; whether any commissioners have experience that would be valuable; and about any interests that commissioners have that will prevent them from considering an application. It is for those reasons that we are placing this power and this responsibility with the commission rather than the Secretary of State. I hope that the hon. Gentleman will accept those reasons.

Bob Neill: I was hoping that the Minister would help on the other point that was raised by my right hon. Friend about what will happen if a single commissioner is in some way incapacitated. That is not a fanciful situation. A few years back, there was some publicity of a long and complicated copyright case in the High Court. The judge reserved judgment and died before he had given his final judgment. How would we deal with such circumstances?

John Healey: To short circuit that issue, if the hon. Gentleman and the right hon. Gentleman look at clause 74, it has provision to deal with such circumstances.

Daniel Rogerson: I am grateful to the Minister for taking the time to consider the amendments. I am not entirely convinced by what he is saying about the Secretary of State having to rely on the advice of the commission. In other debates, we have heard about instances in which the Secretary of State under the current regime has decided not to go along with the advice of the Planning Inspectorate on individual applications. The Secretary of State does have his or her own mind. That issue should be considered together with what we have said about the local authority being able to express a view as to the suitability of a particular commissioner. The local authority is acting not in a vacuum, but as the representative of the local community, so it can put forward the views of the local community to the Secretary of State in those circumstances.
The Minister has sought to advance the principle throughout the Bill that the framework for considering decisions on policy, structure, and regulation is set by democratically accountable politicians, through the relevant Department, the Secretary of State, the Ministers and secondary legislation. The decisions take place within that structure. One can argue that that is the distinction and that it stacks up.
However, I would argue that the decision on who the commissioners are could be regarded as a political one, and, therefore, it ought to rest with the Secretary of State and the person who is setting the framework within which the decision will be taken. For that reason, I am of the opinion that it could be an important question later on.
We may have the opportunity, as we look at other clauses and hold stand part debates, to consider the notion of the single commissioner, and whether it is an appropriate mechanism for hearing an application. The question of who sits on the panel is crucial, and if the decision is taken among the members of the commission, it could bring the whole process into question. I certainly do not want that to happen. Therefore, I seek the Committee’s leave to press the amendment to a division.

David Curry: I have not been able to resist the temptation of looking at clause 74, and it helped, although not that much. It states that if a new commissioner takes over, they can pretend that they were the old commissioner:
“the new single Commissioner may, so far as may be appropriate”—
that wonderful word, which, coupled with “reasonable”, enables Government function—
“decide to treat things done by or in relation to any previous single Commissioner as done by or in relation to the new single Commissioner.”
In the next clause, it states that the commissioner is under an obligation to ensure that he knows what he is talking about. At the very least, there will have to be an interval in which the new commissioner reads himself or herself in. The nature of the applications is such that that will not be done in a weekend with a wet towel. It could cause a significant delay.
Also, people who are concerned about an application will be given a soft target in being able to say, “Well, the new commissioner did not understand all that happened in the past. They seem to have missed crucial things.” It suggests that one should be very cautious before taking the risk of going to a single commissioner, as opposed to three, for example. I think that it is something to return to.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 11.

Question accordingly negatived.

Clause 53 ordered to stand part of the Bill.

Clauses 54 to 58 ordered to stand part of the Bill.

Clause 59

Panel member continuing though ceasing to be Commissioner

John Healey: I beg to move amendment No. 370, in clause 59, page 30, line 36, after ‘until’ insert ‘— (a)’.

Eric Illsley: With this it will be convenient to discuss Government amendments Nos. 371 to 377.

John Healey: May I own up to the Committee, Mr. Illsley? We have spotted a loophole. We did not spot it earlier, but we have spotted it now, and the amendments are designed to close it. I hope that if I briefly explain to Members what the loophole is, they will agree that the amendments are appropriate. It involves a curious situation that could arise. Clauses 59 and 73 could allow an ex-commissioner to opt to prolong their term of office until the end of a particular examination, regardless of whether or not they had been removed from that examination by the chair—in other words, even though they were no longer conducting or involved in the examination. [Interruption.] Does the right hon. Gentleman want me to give way?
 Mr. Curry indicated dissent.

John Healey: If an ex-commissioner opted to prolong their term of office after they had already been removed from the panel, they would be treated as a commissioner, paid a salary and any other benefits, but would not do any work for it. We are anxious that such a situation should not arise, but it could at the moment.

Jacqui Lait: I shall not detain the Committee for long. I am grateful that the Government have spotted that loophole. I wish that they would pick up on a few of the loopholes that we have spotted, but never mind. We are happy to accept the amendments.

Amendment agreed to.

Amendments made: No. 371, in clause 59, page 30, line 37, after ‘application’ insert ‘, or
(b) (if earlier) the ex-Commissioner ceases to be a member of the Panel.’.
No. 372, in clause 59, page 30, line 39, after ‘until’ insert ‘— (a)’.
No. 373, in clause 59, page 30, line 41, after ‘application’ insert ‘, or
(b) (if earlier) the ex-Commissioner ceased to be a member of the Panel.’.—[John Healey.]

Clause 59, as amended, ordered to stand part of the Bill.

Clauses 60 and 61 ordered to stand part of the Bill.

Clause 62

Membership of Panel where application relates to land in Wales

Daniel Rogerson: I beg to move amendment No. 282, in clause 62, page 31, line 27, leave out ‘or’.

Eric Illsley: With this it will be convenient to discuss amendment No. 283, in clause 62, page 31, line 28, at end insert ‘or
(c) a Commissioner who is conversant in the Welsh language.’.

Daniel Rogerson: This is a relatively minor point, but it could be significant to some people who are concerned with individual applications. There is only one Committee member present who represents a Welsh constituency, as the hon. Member for Meirionnydd Nant Conwy is not here. [Interruption.] There are two members—I apologise to the hon. Member for Clwyd, West. I spotted one, but I had not looked over my right shoulder. I hope, then, that there will be even more support for the amendment than I had anticipated.
The amendment is about the Welsh language. I am a great supporter of the Cornish language, but, unfortunately, we are not quite at the stage when people will need to give evidence in the Cornish language regarding an application in Cornwall. I am grateful to the Department for Communities and Local Government for supporting the Cornish language and for giving it some funding for the first time.

John Healey: I am grateful to the hon. Gentleman for his comments, and I will make sure that those responsible in the Departments know about them. Would it be in order if he were to move the amendment in Cornish, Mr. Illsley?

Daniel Rogerson: Meur ras. I can say thank you, and that is about it.

Alun Michael: Rwy’n barod iawn i ateb yng Nghymraeg.

Daniel Rogerson: Meur ras, I think.

Eric Illsley: Order. In English please.

Daniel Rogerson: Sadly, I grew up in Cornwall at a time when the language was not receiving funding and was not available in school. I am sure that the Minister is following the debate on a single written form, which will allow it to be pushed out into schools in the community a lot more. However, the amendment relates to the Welsh language, which has a significant and growing community that includes not only those who use it as a second language, but those who use it as their first language. That is the point.
There have been debates and Bills in this place and consideration in the courts about the use of the Welsh language and the ability of people to be cross-examined in Welsh and to have their case heard by a Welsh-speaking jury. Where we are discussing provisions for the Welsh Assembly to advise on the appointment of members to the commission, it would be beneficial for one of those members to have an understanding of the Welsh language. We have already heard about the many wind farm applications in north Wales, and there may be other significant projects that fall within the provisions of the Bill and that are heard by the commission. I am sure that it would benefit those people who have Welsh as their first language to be able to give evidence in Welsh. I hope that the Minister will consider accepting the amendment.

David Curry: On a point of information, Mr. Illsley. European regulations, which are printed in all sorts of different languages, can sometimes lead to great confusion simply because one concept does not translate easily into another language. For example, the German word “Raum” is not the same as the English word “room”, and I remember that huge problems arose with the regulations concerning the slaughter of poultry on the question whether rooms had to be provided for vets or whether there simply had to be spaces. If there is a dispute between the Welsh and the English, which text will take precedence?

David Jones: I feel constrained to make a contribution to this debate. Over the years, the Conservative party has shown its adherence to and support for the Welsh language. The Conservative party piloted the Welsh Language Act 1993 through Parliament, so we yield to no one in our support for the Welsh language. My concern is not that the commissioner should, so far as is possible, be able to speak Welsh; it is just a question of capacity.
We are talking about appointing commissioners who are experts in their individual fields. Wales is a small, but highly talented nation. Unfortunately, the number of fluent Welsh language speakers who are of working age is relatively small. Among their number are some distinguished hon. Members, including the hon. Member for Meirionnydd Nant Conwy and the right hon. Member for Cardiff, South and Penarth. I am concerned that it may be difficult to find a sufficient pool of, for example, Welsh-speaking nuclear engineers to form part of the panel. Welsh-speaking nuclear engineers would probably find it far more profitable to be employed as expert witnesses rather than as commissioners. Although I sympathise with the thrust of the hon. Gentleman’s amendment, in practice it is probably unattainable.

Alun Michael: This is probably an attempt by the Liberal Democrats to look positive and sympathetic about the Welsh language, which is always welcome, but it is inappropriate in these circumstances. The fact of the matter is that, because of the greater use of Welsh in a variety of circumstances, such as court and tribunal proceedings, public bodies in Wales are used to dealing with the language and ensuring that that is done appropriately. I hope that the Minister will tell us that, in accordance with the modern requirement for public bodies to have policies on how to deal with the Welsh language, the new body will always look at making it possible for people to give evidence in the language of their choice and for appropriate arrangements to be made, if a commissioner were to need that capacity.
I agree with the hon. Member for North Cornwall that the important thing is to have the right people in place with the right competencies, rather than having artificial constraints on the appointment of commissioners. The issue is more about how things have changed over the years, in part because education has developed over many years.
The hon. Member for Clwyd, West has mentioned the Conservative party’s support for the Welsh Language Act 1993. The increased use of the language in areas where it was not previously available or spoken is largely due to the considerable generosity of Labour authorities, often in non-Welsh-speaking areas, in promoting the teaching of Welsh over many years.
The point is that the artificial limitation proposed for the appointment of commissioners is inappropriate. I hope that we will hear from the Minister that appropriate provision will be made for Welsh in those arrangements, as in all others.

Elfyn Llwyd: May I first apologise for not being present at the beginning of the debate? The right hon. Member for Cardiff, South and Penarth made the point well that, as a public body, the new body must have a Welsh language policy. Therefore, the points that concern the hon. Member for North Cornwall will be dealt with within that body.

John Healey: Clause 62 will ensure, as hon. Members have recognised, that as far as is reasonably practical, any panel that considers an application for a major project in Wales will have among its members a commissioner who has been nominated by Welsh Ministers. We have said that there will be two or three such commissioners, or a commissioner whom Welsh Ministers are content should be considered in that way.
The amendments would add a third option, so that a member of the panel would be able to speak Welsh. We all agree that it would be excellent if at least one member of a panel considering a Welsh application were able to speak Welsh and to understand anyone who wished to be heard in that language. However, it is extremely likely that one of the criteria that any Welsh Minister will want to consider when nominating a potential member of the commission will be the ability to speak Welsh. We will discuss that matter with Welsh Ministers when we come to specify in our advertisements the skills and competencies that we are looking for in potential applicants. In the spirit of devolution, I think that that is something that the Committee should leave in the hands of Welsh Ministers. Well intentioned as the amendments are, I am not sure that they would either add flexibility in appointing commissioners or, in the case of a panel or single commissioner considering an application in Wales, ensure that someone is found with the right skills for the job.

Daniel Rogerson: I am grateful to the Minister for that reply and to all hon. Members who have given me the benefit of their experience, particularly the three former Welsh Ministers who have participated in the debate. The amendment is not an attempt to make a political point for the Liberal Democrats; it is a personal point, as I am a great supporter of all the Celtic languages, and wherever I see the opportunity to try and promote them, I will. In passing, I will mention that my mother is Welsh, although she is an English speaker from the valleys. I was also at university in Aberystwyth, where I had the benefit of hearing the Welsh language in action a great deal.
I accept what the Minister is saying. We do not want to fetter too greatly the Welsh Ministers in deciding whom they would like to recommend. However, we have added to the list of qualities that the special people whom the Government will seek must have. The issue of social skills was raised earlier. When considering applications in Welsh, an important consideration could be that the candidate can understand contributions made by members of the public and objectives in both languages that are in common use in Wales. I certainly will not push the matter to a vote, but I am glad that we have had this debate and that the Minister has considered the importance of the Welsh language.

Amendment, by leave, withdrawn.

Clause 62 ordered to stand part of the Bill.

Clauses 63 to 65 ordered to stand part of the Bill.

Clause 66

Panel to decide, or make recommendation in respect of, application

Amendment proposed: No. 206, in clause 66, page 32, line 40, at beginning insert ‘Subject to subsection (1A) below,’.—[Mrs. Lait.]

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 11.

Question accordingly negatived.

Clause 66 ordered to stand part of the Bill.

Clause 67

Decision-making by the Panel

Daniel Rogerson: I beg to move amendment No. 286, in clause 67, page 33, line 21, at end insert—
‘(3) The vote of each member of the panel in respect of each decision shall be recorded.’.
I am beginning to feel like a one-man show here. [Interruption.] I apologise; there have been some excellent responses from the Minister. The amendment relates to votes being taken within the panel when determining an application. That raises the possibility of different commissioners serving on a panel taking a different view with regard to an application that they are considering. They may have different areas of expertise and experience, and it is part of their role to use that experience to consider an application, to take into account the evidence before them and to reach a conclusion following discussion.
If it were to come to a vote, the amendment would require each vote on an application to be recorded. As commissioners may acquire a reputation in certain fields, with the implication that they hold certain opinions and views, were any trend to become obvious, it might be suggested that they were prejudging applications based on a certain point of view. To record the commissioners’ votes on each application would help transparency and make it more likely that those who are concerned about how an application has been handled would have the evidence, or contributory evidence, in order to call the judgment into question.
The amendment is simple. It would not damage the Bill or obstruct what the Government are trying to achieve in any way, but it would mean that people concerned about individual commissioners taking individual views would have the evidence in front of them. It may help the Government, because it would help to allay any fears by showing that there is no bias and that the commissioners are considering each individual application on its merits, with no trends developing at all. It could work both ways, but whichever way it works, I cannot see how it would be anything other than helpful, and I therefore hope that the Minister will consider taking it on board.

David Curry: I normally find myself in agreement with my Cornish friend, and the fact that this time I am not sure that I do probably means that the Minister is about to accept the amendment. If the commission is to work, it must operate on the basis of collective responsibility, which means that the decisions must be indivisible. The trouble is that if commissioners get a reputation for voting in a particular way, like the Bank of England’s Monetary Policy Committee, the minute that they are appointed to a case, the first thing that will happen is that their past history will be wheeled out and presumptions made about how they are likely to react.
I see the obvious attractions of recording and publicising votes, but I also see the drawbacks in terms of developing collective wisdom, with individual commissioners being separated out and comments being made about the appropriateness of certain appointments to carry out certain tasks. It is a conundrum to which, happily, I am not in the position of having to provide an answer, but the Minister is, and I am interested to know what it is.

John Healey: All members of the Committee accept that, as far as possible, the commissioners sitting on a panel will operate best if they operate collectively, reflecting the equal role of the members and the skills that they bring to the table in consideration of any particular application. At the same time, there are circumstances in which commissioners will disagree, and it may be that a vote on a decision will be necessary in order to avoid a deadlock. In those circumstances, a panel would take a decision by a majority and the lead commissioner—the commissioner chairing the panel—would have a casting vote, if there were a tie.
In order to avoid confusion, significant splits and some of the drawbacks outlined by the right hon. Member for Skipton and Ripon, the Bill provides that once a decision has been taken, in the spirit of the ambition to see the panel and the commission operating collectively, all members of the panel will be bound by collective responsibility. The proposal to record and publicise votes in such circumstances would undermine that principle. I hope that the hon. Member for North Cornwall will not press the amendment to a vote.

Daniel Rogerson: I understand the argument put forward by both the Minister and the right hon. Member for Skipton and Ripon. However, it depends where one is coming from on this issue. If we want the commission to build up the reputation that the Minister is talking about, it might help to have a collective responsibility, which is unfashionable nowadays. My concern is that such allegations will be made anyway. If two or three members of a panel are looking at an application within a certain sector, it may well be that, because of their expertise, they find themselves on another panel considering another application of a similar type. People will start to read into that. They may say, “Mr. Smith was on the last panel and that decided that, and this one has decided that.” It might help if people can base whatever they say on evidence rather than supposition. I do not think that we can stop potential criticism of the panel. It is more likely to be unfounded or founded on supposition rather than the facts. I will not press the amendment to a vote, but there could be concerns about opacity in the decision taking of a commission or a panel.

Amendment, by leave, withdrawn.

Clause 67 ordered to stand part of the Bill.

Clauses 68 and 69 ordered to stand part of the Bill.

Clause 70

Single Commissioner to handle application

Question proposed, That the clause stand part of the Bill.

Daniel Rogerson: I want to return to the issue of the single commissioner and would like to vote on clause stand part.
To delete clause 70 would have a fairly drastic effect on the function of the single commissioner. As far as I can see, single commissioners should not be considering applications of national importance. Having moved away from the issue of democratic accountability, I will not go over again the arguments about whether the infrastructure planning commission is a beneficial part of the Bill, but I will say that if we are going to have such applications considered, it should be done by a group of commissioners rather than a single one.

Jacqui Lait: I am somewhat torn between both arguments. On balance, however, the practical potential impact of having a single commissioner who is sick or who has to pull back from presiding overrides the argument that the Minister makes for what is a relatively small application. Evidence was cited to us about the north Yorkshire grid application and substations being held up for many years for all sorts of reasons. Even a small application for a substation would be affected.
We have also been given an example about roundabouts on the A1. It may be no surprise that I, too, am familiar with those roundabouts. I can imagine that any proposal to replace them with whatever might be the right solution at those junctions would be controversial. There is an interesting debate to be had on whether such projects are of national significance and whether it is more appropriate for the IPC or the Planning Inspectorate to deal with them. If such projects are to be classified as projects of national significance, and they are controversial, then however speedy the process could be under the system that we are trying to achieve with our amendments or under the Government’s system, we need more than one commissioner on even the smallest project.
The likely consequence is that although the number of applications might stay the same, the number of applications that the commission can deal with in a year will go down. That backs up the arguments that we have long made that the number of commissioners appointed and the deadlines that are implied will clog up the system and not speed up the decision-making process. I therefore support the objection of the hon. Member for North Cornwall to the clause and will join him in voting against it.

Question put, That the clause stand part of the Bill.

The Committee divided: Ayes 11, Noes 5.

Question accordingly agreed to.

Clause 70 ordered to stand part of the Bill.

Clauses 71 and 72 ordered to stand part of the Bill.

Clause 73

Single Commissioner continuing though ceasing to be Commissioner

Amendments made: No. 374, in clause 73, page 35, line 22, after ‘until’ insert ‘— (a)’.
No. 375, in clause 73, page 35, line 23, after ‘application’ insert ‘, or
(b) (if earlier) the ex-Commissioner ceases to be the single Commissioner.’.
No. 376, in clause 73, page 35, line 25, after ‘until’ insert ‘— (a)’.
No. 377, in clause 73, page 35, line 27, after ‘application’ insert ‘, or
(b) (if earlier) the ex-Commissioner ceased to be the single Commissioner.’.—[John Healey.]

Clause 73, as amended, ordered to stand part of the Bill.

Clauses74 to 78 ordered to stand part of the Bill.

Clause 79

Examining authority to control examination of application

Daniel Rogerson: I beg to move amendment No. 296, in clause 79, page 37, line 21, leave out paragraph (a).

Eric Illsley: With this we may discuss the following: Government amendments Nos. 378 and 379, and 382 to 384.
Amendment No. 397, in clause 96, page 44, line 29, leave out paragraph (a).
Government amendment No. 385.

Daniel Rogerson: I am sure that the more experienced Members who are used to wading through Bills will understand the use of the word “frivolous” in this context, but I must admit that it raised some concerns with me. I would be interested to hear how the Minister defines “frivolous.” I can understand that were commissioners to receive a note saying, “Dear commissioners, you are a bunch of”—one can insert the Anglo-Saxon or Welsh word of choice—they might regard that as frivolous and seek to disregard it.
However, there may be standard letters—for example, those that are completed by several objectors. Will letters that people are handed in a town centre and asked to sign, and things of that nature, be considered frivolous? The examining authority might seek to use the word “frivolous” to disregard some objections, or it could be argued by the applicant that something should be considered frivolous.
The purpose of the amendment is to draw attention to the use of the word. It may be that I am unaware that it is standard practice to include it, and that there is a clear definition of it, but I would welcome hearing from the Minister what the definition is.

Bob Neill: Following on from the hon. Gentleman’s point, in other legislation and in common law, definitions of, for example, frivolous and vexatious litigants are well enough known. Is this the same sort of context? It obviously is not entirely the same, but is the frivolous part intended to be the same, and in what context?
Will there be any scope for appeal? One is hoping that there would be, because the people who might make frivolous representations are exactly the sort of people who may end up seeking judiciary review applications and being obstructive. I hope that the Minister can give some clarification of that. I understand that that is what the Bill is trying to achieve.
I note also that in subsection (2)(b) regard is to be had to
“any guidance given by the Secretary of State, and any guidance given by the Commission, relevant to how the application is to be examined.”
Will the guidance from the Secretary of State be guidance to the commission? I assume that that is the case. Will the guidance from the commission be to itself, or will it also be to those appearing before it? Can the Minister give us any idea as to what sort of matters might appear in the guidance? Will there be consultations on the guidance? How will they be published, and what legal status will they have? What is the timetable?

John Healey: “Frivolous” refers to a representation that the person who is making it knows in advance has no merit. The amendment would make it unclear whether the IPC is required to consider frivolous representations during the examination of an application. Although we all share the aim of ensuring that IPC examinations are thorough, efficient and accurate, we should agree that frivolous representations, which may be irrelevant, pointless or patently of no merit, have no place in the system. I hope that the hon. Gentleman is reassured that the IPC should not use that as a means of excluding people from submitting evidence that has merit. Were it to try to do so, the normal procedures of administrative law would apply to the IPC, just as they do to any other public body. Those who believe that their evidence has been unreasonably disregarded in that respect could also make use of the mechanisms for legal challenge set out in clause 104.
Government amendments Nos. 378, 379 and 383 to 385 would strengthen the thoroughness of the IPC’s examination by ensuring that parties do not try to wreck the proceedings by using vexatious representations. They are consequential amendments to clauses 92 and 96 and were tabled to ensure consistency throughout the Bill in the treatment of vexatious representations. It should not be too difficult for the IPC to identify when representations become vexatious—there will be a large quantity of repetitive, burdensome and unwarranted representations in which the intention is not so much to explain the issues as to try to do down or subdue the other parties.
Government amendment No. 382 concerns a different matter. As the hon. Member for Bromley and Chislehurst has pointed out, it will allow the Secretary of State to prescribe the form and manner of a relevant representation for the purposes of clause 92 to facilitate the clear and efficient communication of information and objections. The amendment would ensure that the IPC can quickly identify the key issues that underline an application in order to concentrate its examination on the most important and relevant underlying issues.
A standardised method of communicating representations could also make the examination of the main issues more effective, which is the purpose of the amendment. There will, of course, be consultation before we finalise the proposals, and although it may be possible for the IPC to specify those things through its own procedural rules and powers, it is appropriate in this case that the Secretary of State should specify them rather than the IPC. The reason is that the decision whether a representation is relevant is the gateway to a participant being included as an interested party to the examination with the rights to be heard that flow from that. The hon. Member for Bromley and Chislehurst is nodding his head, and I think that he recognises the significance of the amendment.

Daniel Rogerson: I am grateful to the Minister for his reassurance that the provision will not be used to discount evidence frivolously. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 378, in clause 79, page 37, line 21, after ‘are’ insert ‘vexatious or’.—[John Healey.]

Bob Neill: I beg to move amendment No. 409, in clause 79, page 37, line 21, at end insert ‘or’.

Eric Illsley: With this it will be convenient to discuss the following amendments:
No. 410, in clause 79, page 37, line 22, leave out from ‘statement’ to end of line 23.
No. 429, in clause 85, page 40, line 8, at end insert ‘or,’.
No. 411, in clause 85, page 40, line 10, leave out from ‘person)’ to end of line 11.
No. 413, in clause 107, page 51, line 17, leave out ‘or is incidental to’.
No. 419, in clause 107, page 51, line 20, leave out subsection (3).
No. 412, in clause 109, page 51, line 32, leave out from ‘provision’ to end of line 34.

Bob Neill: We seek clarification on clause 79, and we return to the important issue of cross-examination once again. Amendment No. 409 would insert the word “or”, which may not seem much in itself, but it deals with the compulsory purchase element of the matter, and we think that it would provide greater clarification.
Amendment No. 410, to move on slightly, would leave out from “statement”, because the current clause may be too restrictive. We do not disagree with the ability to restrict extraneous material, which has been our stance throughout. I see the hypothetical danger of somebody saying, “I want to go on to the merits of nuclear power, beyond what the national policy statement says.” Will the Minister give us an idea how the clause will work in practice, which will assist us?

Eric Illsley: Order. In view of the time for which the Committee is likely to sit, and to give the hon. Gentleman time to collate his thoughts, the Committee will take a 15-minute refreshment break, on the basis that we have now sat for almost two and a half hours and are likely to sit until the votes in the Chamber this afternoon. The Committee cannot sit for four hours without a break, and it would be as well to take that break now.

Daniel Rogerson: On a point of order, Mr. Illsley. I realise that the Government Whip may be seeking to catch your eye, but I wonder whether it would be better to finish proceedings today at 4 o’clock, as the convention has been up to now. We could press on until that juncture, subject to what other hon. Members think.

Eric Illsley: Order. The Committee is suspended until quarter to four.

Sitting suspended.

On resuming—

Bob Neill: May I say, Mr. Illsley, how grateful I am to you for your perspicacious decision to adjourn the Committee for a short time?
I hope that I can deal with the amendments quite briefly. It is clear to anyone that they are on compulsory purchase. Taken together, amendments Nos. 409 and 410 would reverse the exclusion from the ambit of the clause of issues relating to compensation for the compulsory acquisition of land, so that they are not disregarded by the examining authority. The subsequent amendments follow that pattern elsewhere in the Bill.
The reason for that is the importance to the individual of the compulsory acquisition of land. It seems right that an individual should be entitled to make representations to the authority examining such a proposal to protect the small person who may have real worries about it. If the Minister can reassure me that there are other mechanisms by which such problems can be satisfactorily vented, I shall be interested to hear them.
If the Government are saying that compensation is irrelevant and not to be regarded, how can that be reconciled with the provision elsewhere in the Bill that one ground for departing from a national policy statement is if the local impact would outweigh the benefit? That is a balancing act. If it is decided that that the impact of a proposal outweighs its benefit, surely the financial consideration might be significant. A man might come along and say, “This will put a firm out of business”. It is not unreasonable to seek some quantification on that. What is the rationale for the argument that compensation should be excluded? Will the exclusion be automatic, or will the examining authority have discretion, as appears to be the case? If so, how will that discretion be exercised?

Elfyn Llwyd: Am I right in thinking that the reason for striking out compensation for compulsory acquisition of land from the ambit of the clause is so that the Lands Tribunal can continue its operation as the main avenue through which land acquisition compulsory payments are discussed if there is a default on an agreement? I am trying to assist, because I, too, am a bit bemused. I suspect that that may be the reason—so that the Lands Tribunal remains intact as a body.

Bob Neill: I am grateful to the hon. Gentleman for his valuable and helpful point. If that is right, which it may well be, does he think that it runs contrary to the idea of having all the consents brought together?

Elfyn Llwyd: That was one of my concerns. The hon. Gentleman is right to raise the matter, and I am glad that he has. Perhaps, in due course, the Minister could address that apparent conundrum and confirm whether it is intended that the Lands Tribunal will operate as it currently does when compulsory acquisitions of land have to be effected.

John Healey: Perhaps I can come to the concerns of the hon. Gentleman and the hon. Member for Bromley and Chislehurst in a moment. I hope that I shall be able to deal decisively with them.
It is important not to overlook amendment No. 429 or let it pass without comment. It is designed to prevent the IPC from refusing to allow representations at hearings if it considers that they relate to the merits of policy as set out in the national policy statement.
We have discussed at some length, particularly in part 2, the importance and benefit of Ministers setting out a clear policy framework in a national policy statement, which will be extensively consulted upon and subject to scrutiny in this House. There has been a general recognition that there is merit in moving away from the current situation in which applications and hearings are possible in which the questions of policy are reopened and examined during the course of the inquiry. I do not want that to be the case or risk with the IPC.
I shall turn to the concerns raised by the hon. Members for Bromley and Chislehurst and for Meirionnydd Nant Conwy. The Bill prevents individuals from making representations about the levels of compensation that they should receive for being compelled to sell individual pieces of land, or their interests in it. The amendments would alter that position. I tried to explain this when I gave evidence to the Committee. If there is a dispute about the levels of compensation for the compulsory purchase of pieces of land, it is a matter for the Lands Tribunal, as the hon. Member for Meirionnydd Nant Conwy surmised, not for the IPC. Nor is it a matter for the Secretary of State if he, and not the IPC, took the decision on a particular application.
On the other hand, amendment No. 412, relating to clause 109, touches on a different question. If individual levels of compensation rightly remain a matter for the Lands Tribunal, it is appropriate and necessary—on reflection I hope that Members will agree—that the IPC can include in an order granting the development consent a provision to ensure that the legislation relating to the assessment of compensation applies to it. It is also appropriate that compensation for land compulsorily purchased is assessed on the same basis as generally applies. That is a provision to ensure that compensation is assessed in accordance with the Land Compensation Act 1973 or the Planning and Compulsory Purchase Act 2004.
Finally, Members know that I have a lot of sympathy with the aim to create a single consent regime, with the intention that promoters can include the totality of their proposed work in a single application. In many cases, applicants will include in their application works connected to the operational effectiveness of the new facilities, such as connections to the national electricity network for a new power station. An electricity undertaker in such a situation might need to acquire land at some distance from the power station to put up pylons or as a means to gain access for overhead line maintenance. The clause simply enables such compulsory purchase provisions to be included in applications for development consent.
Finally, amendment No. 419 would remove the need for the IPC to be satisfied that there was a compelling need in the public interest for land to be compulsorily purchased. I assume that it is either a probing amendment or a drafting deficiency. Surely Members would want the IPC to have the ability to issue compulsory purchase orders only, and would not want it to do so without having to be sure that there was a case for it in the first place.
I hope that my comments have been useful and that Members do not feel the need to press their amendments.

Bob Neill: The Minister is quite right about amendment No. 419; an error slipped into the drafting. I heard what he said, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 79 ordered to stand part of the Bill.

Clauses 80 and 81 ordered to stand part of the Bill.

Clause 82

Written representations

Question proposed, That the clause stand part of the Bill.

Bob Neill: We turn to a group of clauses, 82 to 84, which relate to the conduct of the hearings. I do not want to repeat points that have already been made. I just want to flag up that we have tabled amendments to clauses 82 to 84 about the right to cross-examination. I shall not ask for a vote on all of them, but when in due course we reach clause 84, I shall ask for a vote on amendment No. 271. I hope that makes things clear.

Question put and agreed to.

Clause 82 ordered to stand part of the Bill.

Clause 83 ordered to stand part of the Bill.

Clause 84

Open-floor hearings

Question proposed, That the clause stand part of the Bill.

Bob Neill: There are two amendments. Amendment No. 271 relates to the right to representation by counsel, solicitors or agent. Amendment No. 272 relates to the ability to call and cross-examination witnesses.

Daniel Rogerson: I want to call a vote on amendment No. 319.

Amendment proposed: No. 271, in clause 84, page 39, line 12, after ‘representations’, insert
‘whether personally, or by its counsel, solicitor or agent’.—[Robert Neill.]

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 11.

Question accordingly negatived.

Amendment proposed: No. 319, in clause 84, page 39, line 12, at end add—
‘(4) Any deadline fixed under subsection (1) shall not be less than 56 days after the day on which the date of the open-floor hearing is announced.’.—[Dan Rogerson.]

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 11.

Question accordingly negatived.

Clause 84 ordered to stand part of the Bill.

Clause 85

Hearings: general provisions

Amendment made: No. 379, in clause 85, page 40, line 7, after ‘irrelevant’ insert ‘, vexatious or’.—[John Healey.]

Clause 85, as amended, stand part of the Bill.

Clauses 86 to 88 ordered to stand part of the Bill.

Clause 89

Timetable for examining, and deciding or reporting on, application

John Healey: I beg to move amendment No. 380, in clause 89, page 41, line 31, leave out subsection (2).

Eric Illsley: With this it will be convenient to discuss the following: Government amendment No. 381.
Government new clause 12—Timetable for decisions.

John Healey: The clause deals with the timetable for examining and determining cases under the new regime. It contains one or two anomalies, which the amendments seek to iron out. Together with new clause 12, they are also designed to bring much greater clarity to the Bill.
It may help hon. Members if I explain the deadlines that apply to examinations, reports and decisions. In a situation in which the panel is examining and deciding a case, it will have six months to complete its examination and three months to take the decision. In a situation in which a single commissioner is examining a case, and then the council is taking the decision, the single commissioner will have six months to examine the case. There will be a further three months in which the single commissioner must prepare the report for the council and the council must take the decision.

Jacqui Lait: How would that play if we had a situation such as terminal 5 in which a statement by the then Deputy Prime Minister prolonged the whole inquiry because he made a calculated or an inadvertent statement about motorways? If a Secretary of State made a statement during a decision-making time that materially changed the circumstances, what would happen to the deadlines that the Minister is trying to put in place?

John Healey: The hon. Lady must bear in mind that we will be in an entirely different situation from the one that exists currently. The IPC will only consider and determine applications in which a national policy statement is already in place. It will be the national policy statement that will be the primary framework within which any of the applications will be considered and determined. Therefore, the situation would not be the same as the example that she cites.
An application may also be submitted in circumstances in which the IPC is set up and in which there is no national policy statement in place. In those circumstances, the IPC will be responsible for examining an application but will then report to the Secretary of State, who will then take a decision. In that case, the panel or the single commissioner will have up to six months to complete the examination followed by three months to prepare their report and recommendations to the Secretary of State. The Secretary of State will then have a further three months to take the decision.

David Curry: Perhaps my chronology is wrong, but given the Minister’s timeline, does it take longer for a hearing under a single commissioner to be completed than one under a panel? I thought that the idea of a single commissioner was to do the smaller things quickly.

John Healey: No. If the right hon. Gentleman consults the Official Report tomorrow, he will see that the time limits are exactly the same. It will take longer if the IPC—whether a single commissioner or a panel—is conducting an examination but has to make recommendations to the Secretary of State, who will then take the decision. That will add a further three months to the process.

David Curry: Does the Minister accept that if one is to have a single commissioner to consider what might be a small but crucial scheme that links bits of the network, it is curious that it should take as long as appointing a full panel? I thought the whole idea was to get on with the job.

John Healey: I am not entirely certain what the right hon. Gentleman’s problem is. I am describing the limits that will apply to each stage of the process. I am not prescribing how long each stage will take. He may be right that the rather more straightforward cases—ones being considered by a single commissioner—may not take as long as others, but the limits will be the same.
There is a provision for the chair of the commission to extend the deadlines for examination, for reporting to the Secretary of State or for decision, where the deadlines bear on the commission. In such circumstances, the chair of the commission will be obliged to notify the Secretary of State of his decision and the reasons for it, and set them out in the commission’s annual report. If the Secretary of State is the decision maker, he, too, may extend the deadline for the decision. In such circumstances, he is obliged to give reasons for that decision and must lay a report before Parliament explaining what has been done.
I hope that my explanation has been helpful and that hon. Members accept that the amendments are useful additions.

Amendment agreed to.

Amendment made: No. 381, in clause 89, page 41, line 35, at end insert—
‘(3A) In a case where the Examining authority is required to make a report to the Secretary of State under section 66(2)(b) or 75(2)(b), the Examining authority is under a duty to make its report by the end of the period of 3 months beginning with the day after the deadline for completion of its examination of the application.’.—[John Healey.]

Clause 89, as amended, ordered to stand part of the Bill.

Clauses 90 and 91ordered to stand part of the Bill.

Clause 92

Interpretation of Chapter 4: “interested party” and other expressions

Bob Neill: I beg to move amendment No. 278, in clause 92, page 42, line 17, at end insert—
‘(aa) the person has an interest in land to which the application relates,’.
This is a straightforward amendment, which is intended to clarify the definition of “interested party.” It would include anyone with an interest in land to which the application relates. One can well envisage circumstances in which the occupation of the land is different from a legal interest in it. The legal interests in land may be complex, perhaps being held in some form of trust, and it seems right and proper that people who might have a proprietary interest affected by land—the impacts are fairly obvious—should be included as interested parties for the purposes of the clause—

David Curry: Tenants and landlords.

Bob Neill: That is the obvious example. The tenant may have a view, and the landlord may want to put forward a different consideration. It seems right and proper that everyone should be included in that consideration.

John Healey: The hon. Gentleman has been clear and eloquent in the way in which he has pressed the argument generally in the Committee. I understand the reason for his concern. I hope that I can assure him that it is the Government’s intention similarly to protect those interests, but that the amendment is not necessary to achieve that. Let me try to do that.
The clause already includes a provision for the Secretary of State to prescribe persons as being statutory parties, who will, therefore, automatically be interested parties. We intend that such people, with an interest in land that the applicant proposes to acquire, should be prescribed as statutory parties for the purposes of the regulations that we intend to make under the clause. I hope that being clear and categorical about that matter has given the hon. Gentleman the reassurance that he seeks, and that he will not press the amendment to a vote.

Bob Neill: I am grateful to the Minister for that reply and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 382, in clause 92, page 42, line 27, leave out from beginning to end of line 32 and insert—
‘(4) A representation is a relevant representation for the purposes of subsection (1) to the extent that—
(a) it is a representation about the application,
(b) it is made to the Commission in the prescribed form and manner,
(c) it is received by the Commission no later than the deadline that applies under section 50 to the person making it,
(d) it contains material of a prescribed description, and
(e) it does not contain—’.
No. 383, in clause 92, page 42, line 36, leave out ‘and’ and insert ‘or’.
No. 384, in clause 92, page 42, line 37, after ‘is’ insert ‘vexatious or’.
No. 151, in clause 92, page 43, line 4, leave out ‘district council’ and insert ‘county council, or district council,’.
No. 152, in clause 92, page 43, leave out lines 5 and 6.—[John Healey.]

Clause 92, as amended, ordered to stand part of the Bill.

Clause 93 ordered to stand part of the Bill.

Clause 94

Decisions of Panel and Council

Eric Illsley: In the absence of the hon. Member for Meirionnydd Nant Conwy, unless someone moves any of the amendments in the group, the group will fall. The second amendment in the group is tabled by the hon. Member for Sheffield, Attercliffe, who is rising to his feet.

Clive Betts: I beg to move amendment No. 330, in clause 94, page 43, line 37, at end insert—
‘(ba) any relevant content of a national planning framework or national spatial strategy prepared for Scotland, Wales or Northern Ireland, where the subject matter of the application or order will affect land in Scotland, Wales or Northern Ireland,
(bb) any relevant content of planning policy statements prepared to support decision-making under the Planning Acts,
(bc) any relevant content of the development plan made under the Planning Acts,
(bd) any statement of impacts and mitigation prepared under section (Duty to identify and mitigate adverse impacts),’.

Eric Illsley: With this it will be convenient to discuss the following amendments: No. 331, in clause 94, page 43, line 39, leave out from ‘other’ to end of line 40 and insert ‘material considerations’.
No. 414, in clause 94, page 43, line 40, at end insert
‘including other statements of policy which the Panel or Council thinks are relevant even if they have not been designated as a national policy statement under section 5 of this Act.’.
No. 323, in clause 94, page 43, line 40, at end insert—
‘(d) whether the proposal is consistent with the principles set out in the local authority’s local development documents (as defined under section 17 of the Planning and Compulsory Purchase Act 2004, (c. 5)),
(e) the likely impact of the proposal on communities within the relevant local authority area,
(f) whether the proposal meets with the approval of persons residing in the relevant local authority area,
(g) any other matter which the relevant planning authority considers appropriate.
(2A) A local authority area is relevant under subsection (2) if any location specified in the application is situated in the local authority area, or is in a geographically adjacent local authority area.’.
No. 332, in clause 94, page 43, line 40, at end insert—
‘(2A) The Secretary of State may by order prescribe that a consideration is not material for the purpose of decisions made on a particular application or order or on a classs of applications or orders.’.
No. 333, in clause 94, page 43, line 41, after ‘application’, insert ‘generally’.
No. 334, in clause 94, page 44, line 2, after ‘application’, insert ‘generally’.
No. 335, in clause 94, page 44, line 6, after ‘application’, insert ‘generally’.
No. 426, in clause 94, page 44, line 8, at end insert—
‘(5A) This subsection applies if the panel or Council is satisfied that deciding the application in accordance with any relevant national policy statement would be inconsistent with the protection accorded to any site under any enactment or directive.’.
No. 336, in clause 94, page 44, line 10, after ‘application’, insert ‘generally’.
No. 337, in clause 94, page 44, line 11, at end insert—
‘(6A) This subsection applies if the Panel or Council is satisfied that deciding the application generally in accordance with any relevant national policy statement would lead to unduly adverse impacts, where the Panel or Council is satisfied that these impacts have not been reasonably and sufficiently managed.’.
No. 338, in clause 95, page 44, line 22, after ‘relates’, insert—
‘(aa) any relevant content of a national planning framework or national spatial strategy prepared for Scotland, Wales or Northern Ireland, (where the subject matter of the application or order will affect land in Scotland, Wales or Northern Ireland),
(ab) any relevant content of planning policy statements prepared to support decision making under the Planning Acts,
(ac) any relevant content of the development plan made under the Planning Acts,
(ad) any statement of impacts and mitigation prepared under section (Duty to identify and mitigate adverse impacts),’.
No. 339, in clause 95, page 44, line 23, leave out from ‘other’ to end of line 24 and add ‘material considerations’.

Clive Betts: The amendments tabled in my name are fairly straightforward, and I cannot think of a good reason for the Minister to refuse them, but I am sure that he will try hard to do so in the next few seconds.
It seems right to me that decisions made by the commissioner, or the Secretary of State in some circumstances, should take account of the national policy statements. We discussed in an earlier sitting the importance of those statements and how they would shape, and in many cases determine, the decisions that are eventually reached by the commission on particular applications.
Amendment No. 330 would give greater responsibility to the commissioner or the Secretary of State to look at other relevant information. While the Bill allows the commission or the Secretary of State the discretion to look at other matters that they think are important and relevant, there should be a requirement for them to consider planning policy statements. Those give the Government’s guidance on planning that any local authority would have to follow in coming to a decision about a planning application. I cannot see any good reason why similar consideration should not be given by the commissioner or the Secretary of State in cases where they make the decisions.
It also seems to me that there should be regard for local development plans when any application is before the commission. The local development framework will be a document on which there has been thorough consultation and it will have been approved by the Secretary of State. We are not trying to slide in any undermining of the process. We are not attempting to stop applications in their tracks or provide more obstacles for them.
The planning policy statements and local development plans are very important documents that should be at least considered by the commission or the Secretary of State in coming to a view on an application. They could, of course, consider them and decide that they are in contradiction to a national policy statement. The intentions of the national policy statement override any planning policy statements or local development plans, but that would be for the commission to determine in each case. As it stands, it is possible for the commission or the Secretary of State legally to reach a decision that cannot be challenged, if they decide that a planning policy statement or local development plan is not relevant for them to consider. That is quite a difficult position to understand.
The other amendments in the group are smaller ones that try to tease out the reasoning behind the wording in the Bill. I am told that amendment No. 331, which would change the wording to “other material considerations”, uses the wording found in other planning legislation. That concept is well understood in planning and planning law. I would like to know why it was thought necessary to include the different wording in the clause when “other material considerations” is traditionally used in such legislation. That would also give a little more scope to the commission to consider matters in the round, rather than in the prescriptive way proposed in the Bill.
I will summarise the most important points. It is right that the commission or the Secretary of State must take account of national policy statements. Of course, they should be able to take other matters that they feel are appropriate into account, but surely they must take into account—if only to disregard them as inconsistent with the national policy statements—the Secretary of State’s own planning policy statements and the local development plans, which have been consulted on and arrived at by local councils, and approved by the Secretary of State.

Jacqui Lait: As we did not run fast enough to the Clerk, I am very happy to support the hon. Member for Sheffield, Attercliffe in his supplications to his Minister on these issues. I want to expand briefly on amendment No. 331, which would insert “material considerations” in place of “important and relevant” matters. We all know that the Town and Country Planning Act was enacted in 1947, although I am advised that it took until 1970 before the courts had defined what “material considerations” meant in planning terms. That means that there was a period of some 23 years before it became clear, in planning terms, exactly what had to be taken into consideration when coming to a decision. I would be most grateful if the Minister would explain whether the use of the term “important and relevant” in the clause is the Government’s attempt to change the definitions, or whether there is some advice that “important and relevant” equals “material considerations”. If that is the Government’s advice, why bother? If they are trying to change the criteria for making decisions, are they actually prepared to spend the next 23 years tied up in legal cases while this is all sorted out?
If that is the consequence of changing from “material considerations” to “important and relevant”, it rather shoots the Government in the foot when they argue that this is a way of speeding up the planning system. One suspects that the only people whom this will benefit in the long run is my hon. Friend the Member for Bromley and Chislehurst and other learned Members. I am sure that that is not—we keep being assured that it is not—the Government’s intention.
We have also tabled amendment No. 414. Should the Government accept the amendment proposed by the hon. Member for Sheffield, Attercliffe regarding “material considerations”, we would, as a consequence, have to amend our amendment to take out “relevant” and insert “consistent”. I am sure that the Government recognise that this is a consequential amendment and that, in essence, it makes the point that has already been made.
Amendment No. 426 reiterates the need to ensure that sites already protected under the habitats directive, or any other protected site, would be regarded as a material consideration—I use that phrase rather than “important and relevant” for the sake of the Government and their policy—in the decisions of the panel and council.

Eric Illsley: I call Dan Rogerson.

Daniel Rogerson: Thank you, Mr. Illsley, for waking me up, as well as for calling on me to speak.

Jacqui Lait: I am sorry.

Daniel Rogerson: Not because of the hon. Lady’s speech, which, as always, enlivened the debate, but because of my lack of sleep last night. I am also grateful to the hon. Member for Sheffield, Attercliffe for stepping into the breach and moving the amendment, not only because of the argument that he advanced, which is very similar to one I would support, but for giving me time to realise that amendment No. 323 is in my name.
I have re-read that excellent amendment, which would do something similar to what the hon. Gentleman has already spoken about: making it clear in the Bill that we ought to look at documents that mean a great deal to people in the local community, who might have invested a great deal of time in getting them right, in terms of their provision for the community’s future.
The proposal should be consistent in some way with the local authority’s local development documents. Any conflicts should at least be considered, with the likely impact on communities within the relevant local authority area examined and some account taken of the general approval of people in the area. The amendment would ensure that a local dimension was brought to bear. I certainly support the arguments that the hon. Gentleman advanced

John Healey: In clause 94, we are trying to set out in the clearest possible terms the factors that the commission should take into account when considering an application: first, the relevant national policy statement; secondly, other matters which may be set out in secondary legislation; and, thirdly, any other matters that the commission thinks are important and relevant to its decision.
As I have stressed to the Committee a number of times, the primary factor is the national policy statement. The application must be decided in accordance with the national policy statement—all members of the Committee have expressed strong support for that concept—except when one or more of a list of considerations apply. Broadly, those considerations are that an application must be lawful, that any adverse impact of the proposal would outweigh its benefits, and that other conditions that might be set out in secondary legislation are met. By and large, the amendments in the group would widen—some might say dilute; I would say confuse—that clear framework for decision making by the IPC.
Let me deal first with local authorities and the understandable concern expressed by my hon. Friend the Member for Sheffield, Attercliffe about their position. Local authorities—local planning authorities—and the devolved Administrations will already be consulted by the promoter of a project under the provisions of part 5. No doubt they will make clear to the promoter in those consultations how the proposal fits—or perhaps does not fit—with their development plans. Local authorities and devolved Administrations will also be statutory parties to the examination of an application and no doubt will use the opportunity to explain in their evidence how the proposal fits—or perhaps fails to fit—with their development plans as well as with the views of their residents. The commission will have to take those factors into account in weighing up whether any adverse local impacts of the proposal outweigh its benefits. I hope that that much is clear from the Bill.
However, it is very important to our objectives that the national policy statement, developed after wide consultation and parliamentary scrutiny, should be the primary consideration for the commission in taking its decisions. I say to my hon. Friend, in particular, that adding in other factors with the amendments as if they had equal weight in the Bill would confuse the clarity of that framework and widen significantly the scope of factors that the commission would have to take into account on a similar basis. As we discussed in relation to part 2, national policy statements will incorporate existing planning policy when it is relevant. In time, we would expect local development plans to reflect the national infrastructure policy statement.
On the point raised by the hon. Member for Beckenham, the IPC, in reaching decisions, can depart from a national policy statement when not to do so would lead the UK to be in breach of its international obligations, or would lead the commission to be acting unlawfully. That will ensure that the hon. Lady’s concern about the habitats directive is met, because the Bill does nothing to compromise that directive. We do not need to mention it in the Bill because it is already part of UK law, so the commission will be required to comply with the terms of the directive in this context.
On material considerations, the hon. Lady might or might not be right that it has taken 23 years to get to the current point and a body of case law that relates to what counts as a material consideration. In a sense, she makes the point for me about the case for a different approach. It is precisely because the phrase “material considerations” has proved to be so unclear in practice that such a vast amount of case law has been spawned. As a result of that accretion of case law, the definition is not necessarily clearer. Often, as a result of the accretion of case law and precedent, the picture is muddled and confused and can hinder rather than help the effective examination of an application and the resulting decision.
We seek not to incorporate material considerations in that context, but to limit the additional matters to which the IPC must have regard to those that the commission can explain as being important and relevant to the decision. I submit to the Committee that the Bill is much clearer about what should and should not be taken into account by decision makers alongside, or in addition to, the national policy statement.
I hope that my explanation has helped and that the Committee will not feel it necessary to support the amendment.

Jacqui Lait: Should the provision go through, I hope that the Government are prepared to spend the next 23 years defining “important” and “relevant”. I am not a lawyer, but I could undoubtedly ask a lawyer whether there is a legal definition of important or relevant. However, I suspect that the Government could be setting up another 23 years of litigation to define those words.
I am advised that the legal definition was clarified in 1970, and that during the next 38 years there was no challenge to it. It will surely be safer to stay with that body of case law. Everything the Minister has said that the panel and the council have to take into account can in my mind be described as material consideration as much as it can be described as important and relevant. 
I am still struggling with why the Government wish to change what is now understood in planning law not for one but for two new concepts—important and relevant. I originally thought that we might vote against the provision, but I am tempted to take further advice in the light of what the Minister had to say; I believe that it is potentially so important that we may have to return to the subject. The definition of important and relevant could shoot holes through everything that the Minister is trying to achieve.

Bob Neill: My hon. Friend makes a powerful point. It is reinforced by the thought that material consideration in the current context is clearly distinguished from immaterial considerations—those that make no difference to the consideration of the application. If they are material and they make a difference to the application, one would think that anything important or relevant would be caught.
The Minister does not seem to have said what might be excluded that is material that would not be important or relevant. My hon. Friend is right that it will be a field day for litigation and confusion.

Jacqui Lait: What better advice could the Committee have than from a practitioner? I am grateful to my hon. Friend for making that point.
We need to take further advice about the Minister’s explanation. Much as we all want the planning system speeded up—although we may disagree on how the Government propose doing it—a new concept that would take 23 years to be defined is enough to strike a chill down all developers’ spines, whether they work for national infrastructure projects or, dare I say it, on an extension to a house.

Clive Betts: We all accept that national policy statements are the most important documents for the commission’s decisions; that is what shapes and guides them, and they will have to be approved by Parliament. I am not sure whether there will be secondary legislation to flesh out subsection (2)(b), which deals with
“any matters prescribed in relation to development of that description”.
I presume that the Minister was indicating that at some point we might have further guidance through secondary legislation that might take on board some of the concerns about the omission of planning policy statements from clause 94.
On local development plans, my hon. Friend said that the local authority will be engaged right from the beginning—from the consultation stage and through the hearing process—and will be able to relate its own development plan to the proposal so that the commission has that advice. With that understanding and reassurance, I shall not press the amendments that are in my name.

Daniel Rogerson: There are clearly concerns about the degree to which local views will be taken into account, and about existing policies on which there has been a great deal of consultation. However, as we want to make progress, and it is clear that the points have been made to the Minister, I shall not press my amendment.

Elfyn Llwyd: We had a debate on the matter covered in my amendment No. 65 on another occasion and I have received separate assurances about it. The Minister assured us that, in any event, the views of the Environment Agency, the Countryside Council for Wales and Natural England would be taken into account in formulating the national policy statement, and that they would be kept fully apprised of what was happening.

Clive Betts: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 94 ordered to stand part of the Bill.

Clause 95 ordered to stand part of the Bill.

Clause 96

Matters that may be disregarded when deciding application

Amendment made: No. 385, in clause 96, page 44, line 29, after ‘are’ insert ‘vexatious or’.—[John Healey.]

Clause 96, as amended, ordered to stand part of the Bill.

Clause 97 ordered to stand part of the Bill.

Clause 98

When power to intervene arises

John Healey: I beg to move amendment No. 386, in clause 98, page 45, line 16, after ‘effect,’ insert—
‘(aa) the Commission has accepted the application and has received a certificate under section 52(2) in relation to the application,’.
This clause, together with the next two clauses, provides that the Secretary of State can intervene to decide an application in place of the commission, but only in certain circumstances. Amendment No. 386 is designed to add a procedural safeguard in such circumstances. It means that the Secretary of State can intervene in an application only once it has been accepted by the commission in accordance with clause 49, and the applicant has given notice of the application to the appropriate people as required in clause 50. What the amendment will do—I hope hon. Members will understand this—is ensure that even when the Secretary of State decides that they may need to intervene in a case to take the decision, the application will still have gone through the appropriate procedures before that point.

Amendment agreed to.

Daniel Rogerson: I beg to move amendment No. 325, in clause 98, page 45, line 30, leave out ‘and’.

Eric Illsley: With this it will be convenient to take amendment No. 324, in clause 98, page 45, line 32, at end insert ‘and
(f) if the national policy statement was given effect during the course of a previous Parliament.’.

Daniel Rogerson: These are probing amendments as this seemed to be a part of the Bill where debate could be had. As I have said before, the Minister has been very careful to make the distinction between the role of Governments in setting policy and the role of the commission in determining applications. One of the benefits of national policy statements is that they provide a framework of which everyone is aware. Once they are in place, they should speed up applications because various issues do not need to be revisited on each occasion if the national policy is clear.
However, the limitation of national policy statements in that context is that they are set by a Government who have been elected. At the next general election, when one of the statements may have become a cause of controversy, an alternative Government may be elected on a mandate to overturn the statement. I am sure that the Minister, and indeed the hon. Member for Beckenham, will have their own views about that contention.

John Healey: Does the hon. Gentleman have any particular policy in mind? Does he have any particular party in mind?

Daniel Rogerson: One could think of policies on nuclear energy, for example. A hypothetical party may be opposed to nuclear energy on principle.

John Healey: So is the hon. Gentleman saying that the Liberal Democrats are a hypothetical party?

Daniel Rogerson: I did not mention the Liberal Democrats; the Minister did. Various political parties are opposed to nuclear power.
The point I am trying to make is that circumstances may change, and a national policy statement’s virtue is that it should exist for a period of which applicants are aware and within which they can work. The point that provoked the amendments is that, in fact, the statements may be time limited up until the next general election, because there may be changes—even within a party. If the same party stays in power, its balance and views may change based on who leads it following a general election. All sorts of factors may change, and a national policy statement can be guaranteed only until a general election, because if there is a change of Government the statement may change. What view has the Minister taken on that issue? Does he feel that it undermines the concept of the national policy statement? This is really a probing amendment to provoke that discussion.

Bob Neill: An interesting point has been raised, but I shall not add to what has been said. One assumes that the power of intervention will be extremely limited, but I am intrigued, and we return to a previous discussion prompted by my hon. Friend the Member for Beckenham. If one considers subsection (3), which sets out the second set of conditions for an intervention, it is noteworthy that the test throughout is materiality, as opposed to, let us say, importance or relevance. It seems to me that there is an internal inconsistency in the Bill. It is sensible to use materiality, because it covers all the important issues, and is well known and well established, but the fact that the Government think it appropriate to use materiality in this clause undermines the use of a different test elsewhere.

John Healey: I am not sure that the amendments proposed by the hon. Member for North Cornwall would do what he thinks they might, because if they were agreed to, the Secretary of State, to intervene, would have to be satisfied not only that all the conditions in clause 98(3) had been met, but that the national policy statement in question had been given effect in the previous Parliament. In other words, the amendments would prevent the Secretary of State from intervening in any cases where the relevant national policy statement had been designated during the current Parliament. I am not sure that that is what the hon. Gentleman wants.
There is a good case for intervention when defence or national security matters are involved, and there is also a good case when a national policy statement is out of date and bears on a decision that cannot wait until the review of the statement is complete. Those conditions are set out in the Bill. I am struggling to grasp the hypothetical situation that the hon. Gentleman introduced to the Committee, but—perish the thought—those conditions may meet his concerns rather better than his amendments would.

Bob Neill: Is that a Liberal interpretation?

Daniel Rogerson: I made it clear that I do not feel that the commission will be accountable enough. The Minister has countered that argument by saying that there is enough accountability at the policy-setting stage. I was merely making the point that national policy statements are only really valid until there is a change of Government, when they might change. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 98, as amended, ordered to stand part of the Bill.

Clauses 99 and 100 ordered to stand part of the Bill.

Clause 101

Grant or refusal of development consent

John Healey: I beg to move amendment No. 387, in clause 101, page 47, line 4, leave out from ‘(b)’ to end of line 6 and insert ‘associated development.’.

Eric Illsley: With this it will be convenient to consider Government amendments Nos. 388 to 390.

John Healey: The amendments are designed largely to clarify the meaning of “associated development”. First, they clarify the definition of “England” and confirm that it includes territorial waters adjacent to England and the renewable energy zone, except any part of the REZ in relation to which Scottish Ministers have functions. Secondly, they clarify the fact that surface works connected with an underground gas storage facility in Wales will not qualify as associated development. They are designed to preserve the devolution settlement.
While I am clarifying and confirming, may I, with your slight indulgence, Mr. Illsley, confirm to the Committee that the consultation document on the community infrastructure levy is published this afternoon? I have copies with me if hon. Members wish to consult them this evening and over the weekend. I also confirm that, although I have been in the Committee with its other members for four hours this afternoon, it is my intention that amendments on Welsh matters and the community infrastructure levy will be tabled this afternoon, thus meeting the undertaking that I gave the Committee that they would be tabled in good time to aid our proceedings.
In fact, I can confirm not only that I aim to have them tabled this afternoon but that they have been tabled.

Jacqui Lait: I have no intention of holding the Committee up, but I take this opportunity to thank the Minister. I am sure that there was a great deal of rushing around going on, and I am glad that I shall not have to use the word “incompetence” about him, unlike certain ex-members of the Government.

Amendment agreed to.

Amendments made: No. 388, in clause 101, page 47, line 6, at end insert—
‘(2A) “Associated development” means development which—
(a) is associated with the development within subsection (2)(a) (or any part of it),
(b) is not the construction or extension of one or more dwellings, and
(c) is within subsection (2B) or (2C).
(2B) Development is within this subsection if it is to be carried out wholly in one or more of the following areas—
(a) England;
(b) waters adjacent to England up to the seaward limits of the territorial sea;
(c) in the case of development in the field of energy, a Renewable Energy Zone, except any part of a Renewable Energy Zone in relation to which the Scottish Ministers have functions.
(2C) Development is within this subsection if—
(a) it is to be carried out wholly in Wales,
(b) it is the carrying out or construction of surface works, boreholes or pipes, and
(c) the development within subsection (2)(a) with which it is associated is development within section 16(3).’.
No. 389, in clause 101, page 47, line 7, leave out ‘development falling within subsection (2)(b)’ and insert ‘associated development’.
No. 390, in clause 101, page 47, line 10, leave out ‘falls within subsection (2)(b)’ and insert ‘is associated development’.—[John Healey.]

Clause 101, as amended, ordered to stand part of the Bill.

Clauses 102 to 104 ordered to stand part of the Bill.
Further consideration adjourned.—[Mr. Watts.]

Adjourned accordingly at ten minutes to Five o’clock till Tuesday 29 January at half-past Ten o’clock.